The Futility of Appeal?

2–3 minutes

June 11, 2010

The only good thing about the NCAA sanctions against USC being so broad and overbearing is that there is room for appeal. It is possible for the ban on two post-season bowl games to become a single year. It possible for the loss of 30 scholarships to become 24 over three years, or even 20 over two years. It’s possible that it might reinstate the BCS championship and the wins, like it did for the shamed 2005 Oklahoma Sooners. Anything is possible.

But even if the appeal is granted, by that point it might already be too late.

Lets get this straight. The sanctions stemming from the ’05 Sooners car dealership scandal or the ’05-’07 Alabama Teams’ free textbooks are NOTHING compared to the hammer dropped upon the USC Trojans. No punishment of this scope or magnitude has ever befell a collegiate football team before. And that actually may sway in USC’s favor upon appeal.

But while Oklahoma’s appeal was granted and Alabama’s denied, no matter the outcome of USC’s appeal, the meanwhile derogation of the Trojans’ football core might be too great to climb out from. The appeals process between filing and ruling for Oklahoma took about six months, for Alabama about nine. But don’t expect USC’s appeal to be concluded that quickly. That’s because the USC investigation took years longer to complete than both the Sooners’ or the Tide’s.

So even if in a year, the NCAA truncates the loss on scholarships or post-season bans, the effect on this season’s recruiting and roster will already be compromised. Current players may likely transfer. Recruits may likely withdraw their LOI’s for prospects of immediate BCS hopes somewhere else.

But despite the negative outlook, all is not lost. While the Trojans may lose some key players, the majority of the loss may be superfluous glut. Maybe that’s a little harsh, but what I’m saying is this: the loss of Stanley Havili or Shareece Wright would be devastating; whereas the loss of Blake Ayles or Drew McAllister is recoverable.

Now is trial by fire for Kiffin who must prove what he’s worth as a recruiter, a coach and a leader. If he can motivate the core players and current recruits to stay faithful to the team, and meanwhile focus on landing new recruits and rebuilding chinks in the armor, maybe he is the perfect guy for the job after all.

DB

June 11, 2010 at 1:23 pm

I am astounded by the lack of evidence standards employed by the NCAA and I strongly believe that SC has the ability to use the CA Courts to get the major sanctions set aside if the appeal process excepts hearsay in support of sanctions. In fact on the pages 5 & 6 of the SC reply doc they bring up their right to due process which SC asserts was denied to it the by the NCAA. It is important to understand that the NCAA rules do not (can not) supersede state or federal law and SC sited Cason v. Glass Bottle Blowers Association of U.S. and Canada, 37 Cal.2dl34,143-144 as case law whereby this has already been adjudicated and established that associations must abide by Fair Process.

If a CA court rules that SC was denied due process it can invalidate the NCAA sanctions.

Another critical issue is the use of “Hearsay” as evidence which is essentially the basis of SC response to the NCAA assertions that Lake and others acted with the knowledge SC i.e. McNeal. As you will see below in the case of Tarkanian he asserted that he was denied due process and that the enforcement case was built on hearsay. While the NCAA has the right to discipline it was ruled that hearsay evidence was not admissible in infraction cases.

Can SC prove that the evidenced used to support major sanctions and a lack of institutional control meets the hearsay standard? If it can any sanctions based on that standard will have to be dismissed by law.

SC can get an injunction against the NCAA until the appeal process and court findings have been completed. SC can use the courts to rule on hearsay aspects of NCAA claims and if the courts rule that factual evidence does not support certain NCAA findings it can force the NCAA to set aside those rulings.

Essentially, SC can boil this down to those two issues and because there is already long standing case law they don’t have to litigate the whole case. SC can ask the CA courts to rule on due process and the hearsay standard.

I believe SC has already signaled to the NCAA that they will follow this path……

Just months before the 1976–77 season, the NCAA placed UNLV on two years’ probation for “questionable practices.” Although the alleged violations dated back to 1971—before Tarkanian became coach—the NCAA pressured UNLV into suspending Tarkanian as coach for two years. Tarkanian sued, claiming the suspension violated his right to due process. In September 1977, a Nevada judge issued an injunction which reinstated Tarkanian as coach. The case eventually made it all the way to the Supreme Court of the United States, which ruled in 1988 that the NCAA had the right to discipline its member schools, but required that due process be followed—effectively upholding the original 1977 injunction.[2]
In the decade between the original suspension and the Supreme Court ruling, it was revealed that the NCAA’s enforcement process was stacked heavily in the NCAA’s favor—so heavily, in fact, that it created a perception that there was no due process. The enforcement staff was allowed to build cases on hearsay, and shared few of their findings with the targeted school. The resulting negative publicity led the NCAA to institute a clearer separation between the enforcement staff and the infractions committee, as well as a system for appeals. Also, hearsay evidence was no longer admissible in infractions cases.[3]

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DePo

June 11, 2010 at 3:40 pm

DB,

Fantastic comments. Judging by your response, you’re either a lawyer or a damn good law student who has already put a good deal of research into the topic. Maybe you’re an outraged lawyer, or law student intern for the USC athletic department itself? Either way, it gets back to my original point…

Even if after the appeal, if USC actually challenged this thing in the judicial system, even with valid constitutional concerns in the improper admission of hearsay evidence and lack of due process, the impact of the sanctions upon the current players and recruits would have long since played out. The judicial system is slow as molasses right now.

My point is not that it is futile to appeal as a matter of legal and moral right, but rather the detrimental affects will have already taken root by the time anything of significance is decided.

But truth be told I haven’t read those cases. Thanks for bringing them to our attention.

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DB

June 11, 2010 at 4:10 pm

Your right there will be damage to SC but SC can get an injunction until this is resolved.

What I find interesting though is the thinly veiled threat by the infraction committee that a TV ban was under consideration. My thought was that the NCAA threatening SC with a TV ban if SC tries to get sanctions revoked due to NCAA Hearsay and Due Process violations?

Or did the NCAA take this position to scare other schools knowing full well that the appeal committee would toss out the sanctions that were based on hearsay? The appeals committee must (by law) apply the hearsay test I believe that this is why other schools have been successful in getting sanctions reduced in the appeals process.

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Tom Hickok

June 11, 2010 at 5:33 pm

I agree with the commenter. The sanctions are blatantly unfair; the report is a polemic, not an objective fact-finding. Hold NCAA accountable in court!

But, please, can someone shut Mike Garrett up? His comments last night were totally off key. sooner he is gone, the better.

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Tom Hickok

June 11, 2010 at 5:35 pm

I agree with the commenter. The sanctions are blatantly unfair; the report is a polemic, not an objective fact-finding. Hold NCAA accountable in court!

But, please, can someone shut Mike Garrett up? His comments last night were totally off key. sooner he is gone, the better.

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Glenn X

June 13, 2010 at 5:57 pm

I’m glad Tark & UNLV is being brought up here. As a native of Las Vegas, I vividly remember the NCAA hounding Tark and the Runnin’ Rebels for years. In fact, many people still falsely believe the NCAA’s accusations against Tark and the Rebs, accusations that, as pointed out, were later dismissed when they were subjected to rigorous Judicial scrutiny.

Perhaps the best thing that could come out of all the conference realigning currently taking place is an undercutting of the whole rationale behind the existence of the NCAA, an argument currently being put forward by ESPN’s Jay Bilas. In short, if you end up with a handful of super-conferences, why do you need the NCAA anymore? Have the super-conferences form their own cross-conference partnerships, and let the NCAA wither on the vine.

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RockyMountainVol

June 13, 2010 at 8:03 pm

Yep, deciding to “lawyer up” would be a great move for USC. Imean, look at what it did for Tark and UNLV; they’re as powerful as they ever were, right?

USC got caught with its hand in the cookie jar. Take your medicine and quit whining; it’s unbecoming an institution of your high stature.

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Detrokery

June 15, 2010 at 4:24 am

Law student. Lawyer. Blah, blah. The law is the sword of the mighty. The rich. I have got to imagine that the NCAA has overstepped here dramatically. Not just by flubbing evidentiary law.

There is the recourse to state law. There is also an issue that hangs over the NCAA, which is that there is a colorable claim that the NCAA is an illegal monopoly in violation of antitrust law.

I personally believe that the NCAA — as an institution — is quite weak. I think that this is why they have decided to sink millions into an ad campaign to dress up there image. But the bottom line is that they are a $710 million parasite that sits on top of college sports. $710 million is the NCAA’s annual take almost all of it from television rights.

If it were me, I’d raise a war chest and go after these goons. I’d initiate a Senate hearing to consider the appropriateness of the NCAA for college sports.

The policing of amateur sports is a worthwhile endeavor, and USC really stepped in the doo-doo when –during the investigation — McKnight (of all players) was seen driving a car he obviously could no afford. But clearly the NCAA has gaffe at an almost equal level. They base the harshest of penalties on hearsay evidence!! Further, they take such a long time handing down the penalty that the harm is to fall not on any of the wrongdoers, but rather a fresh batch of players and coaches! The cardinal sin — the one that they may end up regretting — is to attempt to make an example of the college program of the largest city in the country that also DOES NOT HAVE an NFL TEAM!!! What kind of morons are they?

USC has the money, the fan base, and the support to make a real mess of things for the NCAA. One would have expected that the NCAA would have made some consideration of the potential repercussion to their institution before charging ahead like they did. But the fact that they did not, simply reinforces the idea that they are an illegal monopoly that not only believes it is fine to tax college sports for the personal enrichment of all involved, but also to assume judicial powers that they do not have. DUE PROCESS YOU NINNIES!!

When you don’t give due process and you take property, you have violated the Constitution. It’s that simple.

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