Friday, November 11, 2011

NCAA's treatment of Ohio State is arbitrary and capricious

Considering the, um, other major events in college football this week, it is not surprising the the new body slam the NCAA gave the Ohio State football program went relatively unnoticed.  But it was a body slam nonetheless:
Ohio State monitored Northeast Ohio booster Bobby DiGeronimo some. But not enough.
Though Athletic Director Gene Smith and former football coach Jim Tressel took steps five and six years ago to keep DiGeronimo away from the program, the university's failure to do more will cost the football team at least five scholarships over three years and has brought a more serious "failure to monitor" charge from the NCAA.
According to the NCAA report, Tressel once kicked DiGeronimo out of a locker he was hiding in while trying to listen to a pregame speech in 2001 or 2002. DiGeronimo called that report "baloney" and said "that's as low as I've heard," contending he had a pass to be in the locker room.
Yet as late as 2011, the school was surprised and unaware DiGeronimo -- once embraced as a friend of the program, particularly under former coach John  Cooper -- was still associating with players. Eventually, DiGeronimo gave money to some players at a 2011 charity event and overpaid others for work done at his company, according to the NCAA and Ohio State.
The school filed its response to the NCAA, and Thursday made the new charges and sanctions public. DiGeronimo, however, disputes several of Ohio State's assertions, including the forcefulness of Ohio State's message.

"They may have been doing it without telling me," DiGeronimo said of OSU's attempts to push him away. "I got mixed signals."
"My guess is that Gene needs a villain in this case and, unfortunately, it's me," DiGeronimo added as part of a statement sent to The Plain Dealer. "What's surprising is the inaccuracies in the reports I have seen from him. I have letters from OSU that he would not want me to make public. I wouldn't do that to the school I have loved all these in years in spite of Gene Smith."
Smith did not respond to a message seeking comment.
DiGeronimo did not speak with NCAA investigators when they tried to contact him as part of this inquiry.
The NCAA's Committee on Infractions won't meet again until Dec. 10, however, Ohio State has asked that the committee consider the case on a conference call by the end of this month. It hopes for a decision on the entire situation the NCAA is reviewing, dating back to the tattoo scandal of last December and the violations by Tressel announced in March, as soon as possible.
Waiting for Next Year discusses what the "failure to monitor" charge means:
When The Ohio State University went through the scandal with former coach Jim Tressel, the hope of the University and its athletic department was that firing Jim Tressel and self-imposing probation plus forfeiting the last season would be enough.
For a while, it looked like that might be the case when the NCAA’s Committee on Infractions delivered OSU a positive letter in response to their investigation into the Notice of Allegations.
All of that changed when the news of the Bobby DiGeronimo booster scandal rocked the program. The NCAA essentially slammed the brakes on their investigation and delivered OSU a supplemental Notice of Allegations.
OSU fans began bracing themselves for the worst penalties. Would the NCAA hit them with Failure To Monitor and/or Loss of Institutional Control (a pre-requisite for most postseason bans)? Would scholarships be lost? Would bowl games be forbidden?
[T]he NCAA has indeed charged the University with a Failure To Monitor its football program. This opens the door to a postseason ban, though it still remains to be seen if the NCAA will go that route.
The NCAA can still add any additional penalties it sees fit, but the whole picture is beginning to move slowly into focus. No timetable is set for the NCAA’s response to OSU’s penalties, but an answer is expectedly fairly soon, most likely by the first week or so of December, if not sooner.
The Failure to Monitor charge does not mean the NCAA has to impose a postseason ban, but it does open the door to precedence for it. Last week the Cleveland Plain Dealer reported that of the 5 teams to face postseason bans in the last 10 years, 3 of them were hit with Failure to Monitor or Loss of Institutional Control, and the other 2 were hit with major recruiting violations.
Ohio State may not have the recruiting violations, but they now have the FTM charge. The NCAA is entirely too inconsistent to predict what will happen, so the University will now have to play out its season while waiting to hear if the NCAA feels their self-punishment is sufficient.
The (Cleveland) Plain Dealer published a good timeline of the pre-DiGeronimo part of the case earlier this summer.

While you're digesting this information, though, you may want to take a look at a very lengthy, well-researched article by Taylor Branch in The Atlantic titled "The Shame of College Sports."  The article is the best indictment of the NCAA I have ever read.  Of particular interest is how the NCAA is now playing the role of the police department that terrorizes jaywalkers but can't catch burglars and thieves:

NCAA officials have tried to assert their dominion—and distract attention from the larger issues—by chasing frantically after petty violations. Tom McMillen, a former member of the Knight Commission who was an All-American basketball player at the University of Maryland, likens these officials to traffic cops in a speed trap, who could flag down almost any passing motorist for prosecution in kangaroo court under a “maze of picayune rules.” The publicized cases have become convoluted soap operas. At the start of the 2010 football season, A. J. Green, a wide receiver at Georgia, confessed that he’d sold his own jersey from the Independence Bowl the year before, to raise cash for a spring-break vacation. The NCAA sentenced Green to a four-game suspension for violating his amateur status with the illicit profit generated by selling the shirt off his own back. While he served the suspension, the Georgia Bulldogs store continued legally selling replicas of Green’s No. 8 jersey for $39.95 and up.
A few months later, the NCAA investigated rumors that Ohio State football players had benefited from “hook-ups on tatts”—that is, that they’d gotten free or underpriced tattoos at an Ohio tattoo parlor in exchange for autographs and memorabilia—a violation of the NCAA’s rule against discounts linked to athletic personae. The NCAA Committee on Infractions imposed five-game suspensions on Terrelle Pryor, Ohio State’s tattooed quarterback, and four other players (some of whom had been found to have sold their Big Ten championship rings and other gear), but did permit them to finish the season and play in the Sugar Bowl. (This summer, in an attempt to satisfy NCAA investigators, Ohio State voluntarily vacated its football wins from last season, as well as its Sugar Bowl victory.) A different NCAA committee promulgated a rule banning symbols and messages in players’ eyeblack—reportedly aimed at Pryor’s controversial gesture of support for the pro quarterback Michael Vick, and at Bible verses inscribed in the eyeblack of the former Florida quarterback Tim Tebow.
The moral logic is hard to fathom: the NCAA bans personal messages on the bodies of the players, and penalizes players for trading their celebrity status for discounted tattoos—but it codifies precisely how and where commercial insignia from multinational corporations can be displayed on college players, for the financial benefit of the colleges. Last season, while the NCAA investigated him and his father for the recruiting fees they’d allegedly sought, Cam Newton compliantly wore at least 15 corporate logos—one on his jersey, four on his helmet visor, one on each wristband, one on his pants, six on his shoes, and one on the headband he wears under his helmet—as part of Auburn’s $10.6 million deal with Under Armour.
So, let's think about this for a minute.

The Ohio State scandal opened up when players traded their own property -- property they had legally acquired under both statutory and NCAA rules -- for tattoos.   It's a rule.  A stupid rule, but a rule.  I don't know that the NCAA's interpretation of the rule here is reasonable, however.  Are football players not allowed to sell anything?  Or just property they receive from the university?  Or property they receive from any collegiate body?  I can see the purpose of the rule: to prevent getting around the ban on paying athletes by giving them goods instead of money.  But is that reasonable here? It is accepted that the goods involved here were given by Ohio State and/or other collegiate bodies and received by the athletes pursuant to NCAA rules.  Once that is given to the athlete, it's their property. 

It should be noted that Edward Rife, the owner of the tattoo parlor, wasn't a booster or connected in any way with Ohio State.  In fact, he was under investigation for drug trafficking and racketeering by the FBI.  Without that, none of this ever becomes public.  My guess is that this type of thing goes on everywhere.  Granted, you can't justify bad behavior with other bad behavior, but is this really bad behavior?  Is this wrong?

Taking money from a booster is one thing (and I'll get to that in a minute).  Accepting gifts and services from a booster is one thing (and, yes, I am looking at you, Miami Hurricanes).  Signing on with an agent is one thing.  Those should be second-nature to athletes by now.  But trading your own property for tattoos?  Stupid? Undoubtedly, but is there any reason why this screams "wrong?"

Moreover, to use the legal term, was there any mens rea here? Any intent to violate NCAA rules or defraud by Ohio State or the players (except for the later actions of Tressel, which I will address in a minute)? Does the NCAA even care about that?

The NCAA answers the question with its actions:  the five playes at the center of the tattoo scandal are suspended for five games.  Meanwhile, concerning the brewing scandal surrounding the Miami football program and the massive amount of illicit benefits given by booster Nevin Shapiro -- allegedly with the connivance of Hurrican assistant coaches -- Hurricane starting quarterback Jacory Harris and four others, who actually took money and benefits from Shapiro, are suspended for exactly one game.   In fact, they come back in time to play the still-hamstrung Buckeyes.

What about that disparity does not scream "arbitrary and capricious?"

The tattoo scandal led to one thing after another.  This is not uncommon in NCAA investigations, as Taylor branch's article illustrates:

The NCAA body charged with identifying violations of any of the Division I league rules, the Committee on Infractions, operates in the shadows. Josephine Potuto, a professor of law at the University of Nebraska and a longtime committee member who was then serving as its vice chair, told Congress in 2004 that one reason her group worked in secret was that it hoped to avoid a “media circus.” The committee preferred to deliberate in private, she said, guiding member schools to punish themselves. “The enforcement process is cooperative, not adversarial,” Potuto testified. The committee consisted of an elite coterie of judges, athletic directors, and authors of legal treatises. “The committee also is savvy about intercollegiate athletics,” she added. “They cannot be conned.”

In 2009, a series of unlikely circumstances peeled back the veil of secrecy to reveal NCAA procedures so contorted that even victims marveled at their comical wonder. The saga began in March of 2007, shortly after the Florida State Seminoles basketball team was knocked out of the NIT basketball tournament, which each spring invites the best teams not selected for the March Madness tournament. At an athletic-department study hall, Al Thornton, a star forward for the team, completed a sports-psychology quiz but then abandoned it without posting his written answers electronically by computer. Brenda Monk, an academic tutor for the Seminoles, says she noticed the error and asked a teammate to finish entering Thornton’s answers onscreen and hit “submit,” as required for credit. The teammate complied, steaming silently, and then complained at the athletic office about getting stuck with clean-up chores for the superstar Thornton (who was soon to be selected by the Los Angeles Clippers in the first round of the NBA draft). Monk promptly resigned when questioned by FSU officials, saying her fatigue at the time could not excuse her asking the teammate to submit the answers to another student’s completed test.

Monk’s act of guileless responsibility set off a chain reaction. First, FSU had to give the NCAA preliminary notice of a confessed academic fraud. Second, because this would be its seventh major infraction case since 1968, FSU mounted a vigorous self-investigation to demonstrate compliance with NCAA academic rules. Third, interviews with 129 Seminoles athletes unleashed a nightmare of matter-of-fact replies about absentee professors who allowed group consultations and unlimited retakes of open-computer assignments and tests. Fourth, FSU suspended 61 of its athletes in 10 sports. Fifth, the infractions committee applied the byzantine NCAA bylaws to FSU’s violations. Sixth, one of the penalties announced in March of 2009 caused a howl of protest across the sports universe.

Twenty-seven news organizations filed a lawsuit in hopes of finding out how and why the NCAA proposed to invalidate 14 prior victories in FSU football. Such a penalty, if upheld, would doom coach Bobby Bowden’s chance of overtaking Joe Paterno of Penn State for the most football wins in Division I history. This was sacrosanct territory. Sports reporters followed the litigation for six months, reporting that 25 of the 61 suspended FSU athletes were football players, some of whom were ruled ineligible retroactively from the time they had heard or yelled out answers to online test questions in, of all things, a music-appreciation course.

When reporters sought access to the transcript of the infractions committee’s hearing in Indianapolis, NCAA lawyers said the 695-page document was private. (The NCAA claimed it was entitled to keep all such records secret because of a landmark Supreme Court ruling that it had won in 1988, in NCAA v. Tarkanian, which exempted the organization from any due-process obligations because it was not a government organization.) Media outlets pressed the judge to let Florida State share its own copy of the hearing transcript, whereupon NCAA lawyers objected that the school had never actually “possessed” the document; it had only seen the transcript via a defendant’s guest access to the carefully restricted NCAA Web site. This claim, in turn, prompted intercession on the side of the media by Florida’s attorney general, arguing that letting the NCAA use a technical loophole like this would undermine the state’s sunshine law mandating open public records. After tumultuous appeals, the Florida courts agreed and ordered the NCAA transcript released in October of 2009.

News interest quickly evaporated when the sports media found nothing in the record about Coach Bowden or the canceled football victories. But the transcript revealed plenty about the NCAA. On page 37, T. K. Wetherell, the bewildered Florida State president, lamented that his university had hurt itself by cooperating with the investigation. “We self-reported this case,” he said during the hearing, and he later complained that the most ingenuous athletes—those who asked “What’s the big deal, this happens all the time?”—received the harshest suspensions, while those who clammed up on the advice of lawyers went free. The music-appreciation professor was apparently never questioned. Brenda Monk, the only instructor who consistently cooperated with the investigation, appeared voluntarily to explain her work with learning-disabled athletes, only to be grilled about her credentials by Potuto in a pettifogging inquisition of remarkable stamina.
Yeah, that Brenda Monk sure sounds like a real menace to society.  Wetherell brings up an interesting point: what exactly is the benefit of cooperating?

On ye olde blog I laid into Mike Garrett, the former athletic director at USC (not South Carolina, the real USC) for his rather arrogant, obnoxious and incompetent tenure.  Nowehere was this more evident than his handling of the NCAA investigations of the Trojan football and basketball programs.   He was defiant -- too defiant, some would say -- in the face of heavy evidence of not only serious NCAA violations but of mens rea for those violations.  I believe Garrett made things worse for USC by overdoing the self-righteous anger, but the self-righteous anger itself was not misplaced, which brings me to Ohio State Athletics Director Gene Smith and former head coach Jim Tressel.

Gene Smith's tenure as AD has been an unmitigated disaster, so bad that many comment, only half-jokingly, that Cleveland-native-but-Notre Dame-alum Smith is an Irish plant sent to destroy Ohio State football.  So far, he has done a good job.  He has managed to screw alumni out of their football tickets, alienate major donors and drive out tailgaters.  As chair of the NCAA Men's Division I Basketball Committee he screwed Buckeye mens basketball by placing it in the toughest NCAA bracket.  Smith's consent to being broken up from Michigan in the Big Ten's new 2-division alignment while being placed with an ethically very questionable Wisconsin program that has given us fits over the years for both football and other reasons is inexcusable.  As I understand it, donations are down and ticket sales are down.  Smith is ruthlessly squeezing every nickel he can out of alimni while at the same time reducing their access to football.  Even before this scandal broke, most in the know fear armageddon was coming between the alumni and Smith's athletic department.

At least based on people I have talked to, Smith is widely viewed as an opportunistic snake, and his handling of this scandal is under considerable suspicion.  It is accepted that Jim Tressel knew about the tattoo issue before the 2010 season -- there are e-mails to prove it -- yet allowed the five players to play anyway, while not telling his superiors in the athletic department about it.  That is why he was fired.  Or so we are told.  The belief among alumni both close to the football program and outside it is that Tressel may actually have told Smith about the problem, and that Smith, who used to be on NCAA Management Council, the NCAA committee on Infractions and the NCAA Football Rules Committee, responded by telling Tressel that because it was penny-ante stuff (which it acually is) and not to worry about it.

That may explain Smith's rather curious behavior on this entire investigation. First, Tressel was fired not after any major NCAA revelations or any confession by Tressel, but the night before a Sports Illustrated article was supposed to come out that would allege even more violations in the program.   As it turned out, the article contained little that was not already know, with several items that were inaccurate and have been debunked.

Additionally, Smith has shown absolutely no inclination to defend the Ohio State football program.  The French Army in World War II put up more of a fight than Smith has. Fot that matter, so did the Polish Army, and even the Danish Army.  Smith on his own initiative vacated the 2010 season, 2010 Big Ten Championship and the 2011 Sugar Bowl.  That has generated considerable resentment among alumni, to whom those records were very important.  Make the NCAA do that, they say.  And I agree.  This is like surrendering Paris before the Germans have even crossed the Ardennes.  Or even the Rhine.

Even worse has been his handling of the allegation involving DiGeronimo.  Those allegations center around a charity event (at which Ohio State players were given either gift bags, which were given to all attendees, or travel money, depending on the news report) and employment of Ohio State players at his company.

The circumstances surrounding charity event is hazy.  As I understand it, the playes had attended it in years past, but only after receiving approval from the athletic department.  This year they did not.  That is inded a problem, but, again, a minor one.

The employment issue is potentially a bit worse.  DiGeronimo is alleged to have overpaid players for their work.  Except, Larry James, the lawyer for the players, disputes that finding, not that anyone would listen:
The lawyer for several suspended Ohio State football players is charging the NCAA with ignoring documentation which he says exonerates or reduces the culpability of his clients.

"From their (the NCAA's) accusations, the inference is that they had their minds made up and nobody was going to change it," Columbus attorney Larry James said Sunday.
He said the players did nothing wrong and should not be penalized.
"This is total innocence," he said.
The NCAA denies James' charges. It did not immediately respond to a request for comment Sunday, but previously called similar allegations by James "patently false."
"You read the NCAA statement (of allegations) and it says the NCAA was not provided with documentation — now that's patently false," James said at his law firm's office in a downtown high-rise. "You can take the NCAA and me out of it. What does the paper trail say?"
James made records available to the Associated Press that he believes the NCAA did not consider when suspending receiver DeVier Posey for five games for accepting too much pay from a summer job. Last year's leading rusher, Daniel Herron, along with offensive lineman Marcus Hall and defensive lineman Melvin Fellows were held out of only the Buckeyes' 34-27 loss Saturday at Nebraska.
Those three return this week for the game at No. 15 Illinois. Posey, who along with Herron was also suspended for the first five games of the season for accepting improper benefits from a tattoo-parlor owner, cannot play until the Nov. 19 game against Penn State — leaving him two games in his senior season.
The NCAA determined that Posey was overpaid $728, Herron and Fellows both accepted approximately $290 in excess pay and Hall received $230 in overpayment from an Independence, Ohio, businessman, Bobby DiGeronimo. Ohio State has banned DiGeronimo, a longtime booster, friend of the program and of players and coaches, from any further contact with Buckeyes athletes and staffers.
James produced detailed records of work hours for each of the players involved, at one point correlating Posey's phone records with his work record, saying they showed that Posey was indeed on the job site and not collecting money without even appearing for work as alleged by the NCAA.
James is being retained by Ohio State with nonpublic funds to represent several players. He said the NCAA apparently ignored material he has sent them throughout the summer and fall to back up the players' contention that they were not overpaid.
"Everything — bank, phone and work records — all came from me to the NCAA," James said. "Wouldn't it have been nice if they had just told me, 'Save your paper'? Instead, I'm saying, 'What else do you need?' "
The NCAA and James both say that the players said they did not know how much they would be paid, but they expected roughly $14 or $15 an hour to work in a car wash, pick up scrap metal or clean up a storage room.
The players did not receive clearance from Ohio State's NCAA compliance department to work the jobs, as required by the NCAA.
Posey told the NCAA he worked alongside union laborers. James said that was why there was such a disparity in his pay compared to the other players. The NCAA concluded that Posey worked only 21.5 hours at a rate of $15 an hour, and therefore was paid for 48.5 hours of work not performed.
James said he did not intend to sue or seek other legal recourse against the NCAA. He does not believe college sport's sanctioning body will consider reducing the penalty against Posey, Ohio State's top returning receiver from last season.
The rules on when and if players can work and for how much are byzantine, to say the least, but the gist of James' position is that DiGeronimo's company was a union outfit and is required to pay the workers according to union rules. The players were paid according to those rules.

That's a very big hole in the NCAA's case.  Another one, which strikess at the "failure to monitor charge" is that Ohio State did, in fact, monitor DiGeronimo extensively.  Yet Smith does not appear to have presented that or any other defense, just curled up into a ball in the corner.

Take the alleged overpayment away, and the violation here may be simply not getting approval beforehand.  Again, a minor, penny-ante violation.

Compare this with Cam Newton:

Last Thanksgiving weekend, with both the FBI and the NCAA investigating whether Cam Newton had been lured onto his team with illegal payments, Newton’s Auburn Tigers and the Alabama Crimson Tide came together for their annual game, known as the Iron Bowl, before 101,821 fans at Bryant-Denny Stadium. This game is always a highlight of the football season because of the historic rivalry between the two schools, and the 2010 edition had enormous significance, pitting the defending national champion Crimson Tide against the undefeated Tigers, who were aiming for their first championship since 1957. I expected excited fans; what I encountered was the throbbing heart of college sports. As I drove before daybreak toward the stadium, a sleepless caller babbled over WJOX, the local fan radio station, that he “couldn’t stop thinking about the coin toss.” In the parking lot, ticketless fans were puzzled that anyone need ask why they had tailgated for days just to watch their satellite-fed flat screens within earshot of the roar. All that morning, pilgrims packed the Bear Bryant museum, where displays elaborated the misery of Alabama’s 4–24 run before the glorious Bryant era dawned in 1958.

Finally, as Auburn took the field for warm-ups, one of Alabama’s public-address-system operators played “Take the Money and Run” (an act for which he would be fired). A sea of signs reading $CAM taunted Newton. The game, perhaps the most exciting of the season, was unbearably tense, with Auburn coming from way behind to win 28–27, all but assuring that it would go on to play for the national championship. Days later, Auburn suspended Newton after the NCAA found that a rules violation had occurred: his father was alleged to have marketed his son in a pay-for-play scheme; a day after that, the NCAA reinstated Newton’s eligibility because investigators had not found evidence that Newton or Auburn officials had known of his father’s actions. This left Newton conveniently eligible for the Southeastern Conference championship game and for the postseason BCS championship bowl. For the NCAA, prudence meant honoring public demand.

“Our championships,” NCAA President Mark Emmert has declared, “are one of the primary tools we have to enhance the student-athlete experience.”
Auburn didn't know Cam Newton was being auctioned?  Yeah, right. No "failure to monitor" there.

In fairness to Smith, however, there are indications that the NCAA is sandbagging him.  As soon as Posey had completed his five-game suspension for tattoos, the NCAA promptly slapped him with another five-game suspension for working for DiGeronimo.

Again, not unusal for the NCAA, as Branch relates with several blood-boiling stories:
Obscure NCAA rules have bedeviled Scott Boras, the preeminent sports agent for Major League Baseball stars, in cases that may ultimately prove more threatening to the NCAA than Ed O’Bannon’s antitrust suit. In 2008, Andrew Oliver, a sophomore pitcher for the Oklahoma State Cowboys, had been listed as the 12th-best professional prospect among sophomore players nationally. He decided to dismiss the two attorneys who had represented him out of high school, Robert and Tim Baratta, and retain Boras instead. Infuriated, the Barattas sent a spiteful letter to the NCAA. Oliver didn’t learn about this until the night before he was scheduled to pitch in the regional final for a place in the College World Series, when an NCAA investigator showed up to question him in the presence of lawyers for Oklahoma State. The investigator also questioned his father, Dave, a truck driver.
Had Tim Baratta been present in their home when the Minnesota Twins offered $390,000 for Oliver to sign out of high school? A yes would mean trouble. While the NCAA did not forbid all professional advice—indeed, Baseball America used to publish the names of agents representing draft-likely underclassmen—NCAA Bylaw prohibited actual negotiation with any professional team by an adviser, on pain of disqualification for the college athlete. The questioning lasted past midnight.
Just hours before the game was to start the next day, Oklahoma State officials summoned Oliver to tell him he would not be pitching. Only later did he learn that the university feared that by letting him play while the NCAA adjudicated his case, the university would open not only the baseball team but all other Oklahoma State teams to broad punishment under the NCAA’s “restitution rule” (Bylaw 19.7), under which the NCAA threatens schools with sanctions if they obey any temporary court order benefiting a college athlete, should that order eventually be modified or removed. The baseball coach did not even let his ace tell his teammates the sad news in person. “He said, ‘It’s probably not a good idea for you to be at the game,’” Oliver recalls.
The Olivers went home to Ohio to find a lawyer. Rick Johnson, a solo practitioner specializing in legal ethics, was aghast that the Baratta brothers had turned in their own client to the NCAA, divulging attorney-client details likely to invite wrath upon Oliver. But for the next 15 months, Johnson directed his litigation against the two NCAA bylaws at issue. Judge Tygh M. Tone, of Erie County, came to share his outrage. On February 12, 2009, Tone struck down the ban on lawyers negotiating for student-athletes as a capricious, exploitative attempt by a private association to “dictate to an attorney where, what, how, or when he should represent his client,” violating accepted legal practice in every state. He also struck down the NCAA’s restitution rule as an intimidation that attempted to supersede the judicial system. Finally, Judge Tone ordered the NCAA to reinstate Oliver’s eligibility at Oklahoma State for his junior season, which started several days later.
The NCAA sought to disqualify Oliver again, with several appellate motions to stay “an unprecedented Order purporting to void a fundamental Bylaw.” Oliver did get to pitch that season, but he dropped into the second round of the June 2009 draft, signing for considerably less than if he’d been picked earlier. Now 23, Oliver says sadly that the whole experience “made me grow up a little quicker.” His lawyer claimed victory. “Andy Oliver is the first college athlete ever to win against the NCAA in court,” said Rick Johnson.
Yet the victory was only temporary. Wounded, the NCAA fought back with a vengeance. Its battery of lawyers prepared for a damages trial, ultimately overwhelming Oliver’s side eight months later with an offer to resolve the dispute for $750,000. When Oliver and Johnson accepted, to extricate themselves ahead of burgeoning legal costs, Judge Tone was compelled to vacate his orders as part of the final settlement. This freed NCAA officials to reassert the two bylaws that Judge Tone had so forcefully overturned, and they moved swiftly to ramp up rather than curtail enforcement. First, the NCAA’s Eligibility Center devised a survey for every drafted undergraduate athlete who sought to stay in college another year. The survey asked whether an agent had conducted negotiations. It also requested a signed release waiving privacy rights and authorizing professional teams to disclose details of any interaction to the NCAA Eligibility Center. Second, NCAA enforcement officials went after another Scott Boras client.
The Toronto Blue Jays had made the left-handed pitcher James Paxton, of the University of Kentucky, the 37th pick in the 2009 draft. Paxton decided to reject a reported $1 million offer and return to school for his senior year, pursuing a dream to pitch for his team in the College World Series. But then he ran into the new NCAA survey. Had Boras negotiated with the Blue Jays? Boras has denied that he did, but it would have made sense that he had—that was his job, to test the market for his client. But saying so would get Paxton banished under the same NCAA bylaw that had derailed Andrew Oliver’s career. Since Paxton was planning to go back to school and not accept their draft offer, the Blue Jays no longer had any incentive to protect him—indeed, they had every incentive to turn him in. The Blue Jays’ president, by telling reporters that Boras had negotiated on Paxton’s behalf, demonstrated to future recruits and other teams that they could use the NCAA’s rules to punish college players who wasted their draft picks by returning to college. The NCAA’s enforcement staff raised the pressure by requesting to interview Paxton.
Though Paxton had no legal obligation to talk to an investigator, NCAA Bylaw 10.1(j) specified that anything short of complete cooperation could be interpreted as unethical conduct, affecting his amateur status. Under its restitution rule, the NCAA had leverage to compel the University of Kentucky to ensure obedience.
As the 2010 season approached, Gary Henderson, the Kentucky coach, sorely wanted Paxton, one of Baseball America’s top-ranked players, to return. Rick Johnson, Andrew Oliver’s lawyer, filed for a declaratory judgment on Paxton’s behalf, arguing that the state constitution—plus the university’s code of student conduct—barred arbitrary discipline at the request of a third party. Kentucky courts deferred to the university, however, and Paxton was suspended from the team. “Due to the possibility of future penalties, including forfeiture of games,” the university stated, it “could not put the other 32 players of the team and the entire UK 22-sport intercollegiate athletics department at risk by having James compete.” The NCAA appraised the result with satisfaction. “When negotiations occur on behalf of student-athletes,” Erik Christianson, the NCAA spokesperson, told The New York Times in reference to the Oliver case, “those negotiations indicate that the student-athlete intends to become a professional athlete and no longer remain an amateur.”
Paxton was stranded. Not only could he not play for Kentucky, but his draft rights with the Blue Jays had lapsed for the year, meaning he could not play for any minor-league affiliate of Major League Baseball. Boras wrangled a holdover job for him in Texas with the independent Grand Prairie AirHogs, pitching against the Pensacola Pelicans and Wichita Wingnuts. Once projected to be a first-round draft pick, Paxton saw his stock plummet into the fourth round. He remained unsigned until late in spring training, when he signed with the Seattle Mariners and reported to their minor-league camp in Peoria, Arizona.
The "restitution rule" is why it is useless for players to sue to have their eligibility reinstated.  Even if they win, the school won't take them back for fear of having to forfeit the games later on.

It is infuriating for us Ohio State fans to watch the scandal at Miami with very little so far having come of it.  Auburn and Cam Newton was actually OK to the NCAA.  Oregon, meanwhile, paid a high school scout to surreptitiously direct recruits to the Ducks program.  So far, no sanctions.  North Carolina football coach Butch Davis was fired amid a scandal concerning academic fraud, improper benefits and ties to agents, but again the NCAA has done very little.  And I have been told that some Big Ten schools have been screaming for years at the NCAA to look into the Wisconsin football program.  Aside from one minor deal with shoes in the mid-1990's, nothing. 

Ohio State is being destroyed for small, penny-ante violations (if even that) with no intent while far worse scandals at Oregon, North Carolina, Miami and Auburn get at best muted treatment by that NCAA.


Being auctioned off for cash? OK.  Trading your own property for tattoos?  Not OK.  Working a summer job? Not OK.


The legal terms "arbitrary and capricious" come to mind.

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