Attorney assesses Tech’s chances with NCAA

Greetings-

This comes from an interview with Michael Buckner, a Florida-based attorney who has vast experience representing schools and coaches in dealings with the NCAA. As I noted in the story in Friday’s paper, he represented the only case out of 13 since the NCAA changed its appeals process rules that had its infractions committee ruling overturned. If there’s sufficient interest, I may post another blog about Buckner’s thoughts about the NCAA enforcement staff and infractions committee, probably  after I return from ACC media days in Pinehurst, N.C. I imagine there’ll be plenty to write about from there.

The first deals with the difficulties Georgia Tech will have winning its appeal, some of which I dealt with in an earlier blog. The second will include Buckner’s opinions on NCAA enforcement and investigations, which I hope will make for some interesting reading.

A brief background: In 2008, the NCAA has made it tougher for schools and individuals to win appeals. It came after the NCAA had lost a number of appeals, including one by Georgia Tech in 2006 that had vacated six seasons of victories, including the 1998 ACC title shared with Florida State. Buckner said the changes were made “to try to stop the bleeding.” In an e-mail, NCAA spokeswoman Stacey Osburn said the changes were made “to ensure the same deference was given to Committee on Infractions decisions as the review of findings of fact on appeal,” which I take to mean a limitation of the appeals committee’s ability to overturn cases.

The primary change was elevating one standard for overturning an appeal from inappropriate based on evidence and circumstances to “excessive” and “an abuse of discretion.”

As a result, without even knowing the merits of Tech’s case or its appeal plans, Buckner said, “I don’t think that, based upon recent case precedent, that they’ll probably be very successful.” Specifically regarding Tech’s case, Buckner thinks Tech’s case is tougher to win for a couple different reasons, but offers one suggestion.

One, he said he thought the infractions committee “did a very smart thing” in supporting its finding of Tech’s failure to cooperate with several examples. Actions by former counsel Randy Nordin and others, including athletic director Dan Radakovich, that the NCAA said hindered the investigation and damaged its integrity are cited all over the report.

Tech officials may well try to argue the penalty was “excessive and is an abuse of discretion” of the infractions committee, which is a tack most schools take.

Infractions committee members, Buckner said, “really insulated themselves from the ‘abuse of discretion’ argument because, upon appeal, the Committee on Infractions can say, ‘Look, the reason we imposed a $100,000 fine or imposed these other penalties is because of the egregious nature of the institution’s actions, and we were able to demonstrate that in the infractions report.’”

Two, a recent appellate ruling has limited schools’ ability to argue case precedent. When USC appealed penalties mostly tracing back to violations related to Reggie Bush, the appeals committee found that “the guidance provided by prior decisions is, and always has been, a matter of judgment.”

Buckner said the ruling “basically renders a lot of cases which are potentially good cases (to use as precedents) to be meaningless.”

This may not matter that much – though it certainly doesn’t help – because Tech’s case is unusual. As Tech associate athletic director Wayne Hogan said Thursday, the case “is so odd and so different from many other cases that we’ve seen, I believe you have to look at this one in a whole different light.”

(This is very, very inside baseball, but in his blog, Buckner posits that this ruling on the value of case precedent could ultimately be damaging for the NCAA.)

Along those lines, Tech’s ability to argue case precedent is also limited by the small number of cases (13) that have been appealed with the new rules. If Tech tries to cite a case prior to 2008, the infractions committee, in its report to the appeals committee, can claim “the case was based on a rule that is no longer valid anymore,” according to Buckner.

In its response to the NCAA’s Notice of Allegations, Tech did argue case precedent regarding the violation concerning the conditions and obligations of membership. All three came after the 2008 bylaw changes.

Three, Tech has a sliver of an opening in regards to the infractions committee’s ruling on Demaryius Thomas. He was ruled to have been guilty of a “preferential treatment” violation for accepting $312 worth of clothes from, the NCAA determined, his cousin’s roommate. (In Tech’s version, the clothes came from his cousin, which would not be a violation.) However, Thomas was never declared ineligible, even retroactively.

It could be argued that it’s excessive to vacate a game when the NCAA or institution didn’t declare any participants ineligible. Buckner called it an “oddity about the decision” and said that if he were Tech’s attorney, he would raise the point.

However, there’s a couple problems with that. The infractions committee will submit a report to the appeals committee and almost certainly will address why it didn’t declare Thomas ineligible. Second, Tech has acknowledged that Thomas should have been declared ineligible, at least temporarily. This is from Tech’s response to the allegations.

“In hindsight, even though the University does not believe that the available information supports a conclusion that he was ineligible, it would have been best for the University to have declared Thomas ineligible at the time.”

(Which doesn’t necessarily mean that Tech thinks Thomas did something wrong. Standard procedure is for schools, if they think there’s a possible violation, to declare the athlete ineligible to protect itself against the possibility of being found to have played games with a team member who had run afoul of the NCAA.)

That’s it in a somewhat large nutshell. This doesn’t mean I think Georgia Tech is guilty and is wrong shouldn’t appeal, or, for that matter, that I think Tech isn’t guilty and should appeal. (Though that would be a strange conclusion to draw.) It’s just going to be a difficult case to win.

I would say this, though. I think, if it thinks it was wronged, Tech should appeal, regardless of what its chances are. The worst that can happen is the appeal will be denied and the probationary period will start a few months later than it would have otherwise.

Thanks for reading. Please follow on Facebook and Twitter.

Ken Sugiura, AJC

186 comments Add your comment

Ralph

July 22nd, 2011
12:18 pm

Yes, we know the AJC doesn’t think Tech will win the appeal. You’ve put it in Blogs and columns. Move on until the results are in.

Tech fan

July 22nd, 2011
12:22 pm

If Tech screwed up, they screwed up. The school has got to move on and the fans as well. 2011 season, here we come! THWG!

FDawg

July 22nd, 2011
12:27 pm

Even though I’m a DAWG …I think Tech should appeal. The punishment doesn’t fit the crime.

dawgmatic

July 22nd, 2011
12:28 pm

Say it ain’t so, NERDS!!

gtalum06

July 22nd, 2011
12:30 pm

Someone tell that guy that Tech is not a “University”… how am I supposed to trust his judgement/knowledge if he can’t figure out that the Georgia Institute of Technology is an “Institute” rather than a “University”… just a thought.

Either way, it will be a tough case to win simply b/c the NCAA has structured themselves in such a way that it’s Tech’s job to prove innocence rather than be proven guilty of such charges. That, and the NCAA is trying to set an example, unfortunately for Tech, we get to be the guinea pig here.

Noob

July 22nd, 2011
12:48 pm

So Techies…..

If by some miracle Tech does win the appeal, are you convinced that the nation will all applaud you, and think of you as a noble school who just fought justice and won with honor??

Since you have a very narrow curriculum, go read a thing or to about PUBLIC RELATIONS, and realize that your image is tainted no matter what the outcome.

Bottom line is, Tech CHEATED, and did it in a very dishonest way while already on probation (or just off of it for a matter of days), and the NCAA is fed up with your program trying to dance around the rules which it sets forth.

I hope you win the appeal. It would be more than entertaining watching you little geeks celebrate and act as if you just “won one for the good guys”.

And so you really think it is a good thing that Sean Bedford, Paul Johnson and other notable players in this process have been outspoken about how “awful” and “ridiculous” the NCAA is, and then plan to stand before them and ask for a change of heart??

DAMAGE IS DONE.

Your program is dishonest, full of cheats, and is nowhere near the model of excellence you have delusioned yourselves into being.

(and before you assume I am a UGA fan, I am not….. others feel the same way about you pompous, cocky, rude, crass geeks)

Noob

July 22nd, 2011
12:49 pm

Tech cheated.

Tech got caught.

Tech was outspoken and rude in handling the punishment.

Now Tech wants to beg for forgiveness and appeal??

HAHA. Good luck with that one.

Ryan Kaczmarski

July 22nd, 2011
12:52 pm

University: noun: An educational institution designed for instruction, examination, or both, of students in many branches of advanced learning, conferring degrees in various faculties, and often embodying colleges and similar institutions.

I would say Tech is a “University”.

Idiot.

Rodney Dangerfield

July 22nd, 2011
12:55 pm

Gtalum06 is the reason why people outside of the GA Tech fanbase do not take GA Tech fans seriously. Who gives two flips if Tech is an Institute or University other than you and your lunatic fringe? It is a school in which you can get a degree just like any other university. Get over it.

Ken Sugiura

July 22nd, 2011
12:57 pm

gtalum06 – you’ll find this hard to believe, but the “university” wording was actually in Tech’s response to NCAA allegations. Tech people chose the word. it’s possible it was done by outside counsel, or maybe there’s some specific protocol schools have to follow in responding to allegations, but, there it is.
ralph – thanks. i think that’ll be it, at least until they file and the process begins, not counting what buckner has to say about the ncaa. which doesn’t sound like much of an offer, i realize.

collegeballfan

July 22nd, 2011
12:58 pm

This case, based on my reading of the report, is not about breaking rules. It is about the NCAA getting their feelings hurt. And that is not a charge that can be supported by hard evidence. It is also a charge that cannot be defended by hard evidence.

They got their feeling hurt. And so they punished Tech for hurting their feelings.

doc

July 22nd, 2011
12:59 pm

nice work ken. enjoy following, just cant get into the belittling that goes back and forth between the twerps and puppies. seems like few men actually show up here and i state this as a 55 year tech man.

Rodney Dangerfield

July 22nd, 2011
1:00 pm

I’m still trying to figure out how Tech cheated.

Jacketman

July 22nd, 2011
1:01 pm

You might as well appeal. No reason not to.

Jacketman

July 22nd, 2011
1:02 pm

Rodney Dangerfield, the only thing Tech did wrong was be uncooperative.

Rodney Dangerfield

July 22nd, 2011
1:03 pm

Some guy that could be connected to an agent giving some clothes to Thomas is cheating? Sounds more like Thomas made a bad decision accepting the clothes. We all know it didn’t help Thomas catch that last pass during the UGA game. Please tell me how this gave Tech an advantage.

Jacketman

July 22nd, 2011
1:05 pm

They never proved that Calvin was connected to an agent.

UGaG

July 22nd, 2011
1:10 pm

And the “The Athens Detention Center” wants to talk about some other school’s mistakes!!!!!!!!!!

T3

July 22nd, 2011
1:13 pm

I remain FIRMLY convinced GT will win this appeal, and win it CONVINCINGLY.

All that’s needed is already present and available.

Ryan Kaczmarski

July 22nd, 2011
1:22 pm

Tech “cheated” when they played an ineligible player.

DO you need the definition of “ineligible player”??

GTBrad

July 22nd, 2011
1:30 pm

Noob,

Beg for forgiveness? I don’t think so. They’re not begging anybody. They just want to prove that Tech is not as bad as the NCAA accuses them of being. If you were called out for something that you know you did not mean to portray would you not want to try to redeem yourself or are you just a pushover?

techfan

July 22nd, 2011
1:31 pm

Tech “cheated” when they played an ineligible player.

To this day he still hasn’t been declared ineligible. You might learn something if you read the blogs before you post.

Ryan Kaczmarski

July 22nd, 2011
1:32 pm

I have no idea what I am talking about

bulldog steve

July 22nd, 2011
1:34 pm

Tech knew it had no chance to win those final games without those players, so they rolled the dice and lost. If they would have sat them, they are not ACC champs, so they are no worse off, other than the 100k. Which I am sure they will spend working on the appeal.

Noneya

July 22nd, 2011
1:41 pm

Ryan….you Sir, are an idiot. Clearly you must be a UGA fan who can’t read. No player was ineligible. Not then, not ever. Read the report.

And I still want to know how you tell the coach he should bench a player because he “might” be ineligible without having a conversation with the coach.

AD: Coach….you need to bench one of your best players for the championship.

Coach: Why?

AD: I can’t tell you why…or who….but you need to bench him anyway.

Coach: Huh?

AD: Well, I could tell you, but then I’d have to kill you.

Coach: Excuse me Sir, but are you F&(&&%(* insane!

AD: OK…I “could” tell you. But then you’ll forfeit the games if Thomas plays…D’oh…now I’ve gone and told you.

Coach: Please stop drinking during the day.

Techy

July 22nd, 2011
1:47 pm

Seriously, they were supposed to bench a player due to an NCAA investigation going on but Coach was not to be told that this was going on? The more and more I read into this the more and more I think the NCAA is smoking crack.

Rduck

July 22nd, 2011
1:48 pm

Ryan… he was never declared “ineligible”. Tech even had the ACC look into it and they didn’t declare him ineligible either. Try not to let facts get in the way of your stupidity…

Rduck

July 22nd, 2011
1:50 pm

Noneya… love it! thats sums it up the best. it was a stupid request by the NCAA investigator to start with…

Ryan Kaczmarski

July 22nd, 2011
1:50 pm

You’re right, Im sorry. I am such an idiot…..

Techmate

July 22nd, 2011
1:51 pm

I think it’s important for schools to “push back” against an authoritative body that seems out of control. Tech needs to appeal and every other college and university in the country ought to be hoping that Tech appeals. . . and wins. Because if somebody does not push back against this arrogant organization, then the NCAA will just steam roll everyone. . . including you ugly, mama’s-boys from Georgia.

bb

July 22nd, 2011
1:52 pm

Ken,

In every article you have written on this topic in the last week you have stated that Tech agrees that Thomas should have been declared ineligible, then you include a quote to support that statement that in no way says that Tech thought Thomas should have been or would ever be declared ineligible. The quote clearly show that Tech officials disargeed that Thomas should be declared ineligible. It only says that in hindsight (i.e. considering the ruling) they should probably have given the NCAA investigator’s opinion more weight.

It’s almost like you think if you say it often enough that will make it true.

Sopwith Camel

July 22nd, 2011
1:55 pm

Techy, you have a good point. If the coach wasn’t supposed to know that an investigation was going on then who was it that the NCAA thinks should have benched the player?? Do they think the Athletics Director should have gone over the coach’s head and benched one of his players without telling him why??

Techy

July 22nd, 2011
1:59 pm

Sopwith, it makes no sense the more you think about it. Can you imagine CPJ walking into the locker room the day of the UGA game and Demarious Thomas isnt in there? CPJ asks why he isnt there and everyone doesnt say anything…….CPJ would punch someone!!!!

JM

July 22nd, 2011
2:03 pm

Tech should appeal and in most legal situations would win. However, the NCAA does not operate on a level field. The NCAA is proving itself worse than the BCS, who would have thought that would happen?

Matt Skole

July 22nd, 2011
2:04 pm

And the “The Athens Detention Center” wants to talk about some other school’s mistakes!!!!!!!!!!

Hic …. LOL I was so drunk I could have killed somebody Hic …. and I didn’t even get suspended at the Institute.

Me and Reuben Houston are hanging out this weekend in the ATL. Better not be on the roads LOL Hic …..

headley lamar

July 22nd, 2011
2:06 pm

Sigh.

Would be nice for tech to take the high road and take their punishment like a man.

We know that’s not going to happen though. They will whine about how the big bad NCAA is sooo unfair and how they have never ever done anything wrong.

WAAAAAAAAA

Just like a three year old.

gt4ever

July 22nd, 2011
2:07 pm

bulldog steve,

There was NO reason to sit any players….. Good Grief, what is ot with you bulldawg fans…

jack ee

July 22nd, 2011
2:07 pm

so NCAA changed the rules after GT won an appeal before, let’s do it again. This attorney is a moron or Ken you interviewed him before he even has had a chance to know what is going on. One day your paper prints a story that says GT didn’t do anything and now you have some attorney who knows nothing about any of it say it doesn’t look good.

Sure hope DRAD ensures this attorney is representing GT or finds someone else.

There is something very wrong in college football when the NCAA thinks it is perfectly fine for Auburn to allow CAM to play because he “didn’t know” his father was soliciting money for his services. Are you kidding me? Any kid whose father is soliting services should not be allowed to play anywhere. There is not infraction for that? Has this country gone insane? And GT is suppose to bow down to these idiots?

BIG BEE

July 22nd, 2011
2:11 pm

Another comment from BOOB, or NOOB. What ever. Maybe misspelled and should be a comment from the IDIOT.

Old Blind Dawg

July 22nd, 2011
2:25 pm

Good luck to the bee’s but I suspect it will end in more frustration. I do wonder what GT hopes to accomplish – get to keep trophy – get the money back – both – ????

Ramlin Man

July 22nd, 2011
2:29 pm

Ken,
Thanks for the updates.
Anybody out there have a clue what rivals is eluding to when it says Tech faithful will have something to look forward to this weekend?

The Grinch

July 22nd, 2011
2:33 pm

Is Boo Boo gonna be declared ineligible? I guess it all depends on what your definition of the word “is” is.

BWAAAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!

Ramlin Man

July 22nd, 2011
2:33 pm

old blind dawg,
I would imagine they would like the trophy back and maybe a year or so knocked off the probation, but mainly I think it’s a pride thing and it hurts the reputation of the school and staff. Under the new appeals I don’t see anything changing though, the system fully benefits the NCAA to do whatever they want with no oversight.

The Grinch

July 22nd, 2011
2:34 pm

I eat my own boogers…..

Techy

July 22nd, 2011
2:35 pm

Ramblin Man, Not sure what that means…..I have heard Will Adams may commit today.

George Stein

July 22nd, 2011
2:35 pm

Accepting punishment is not taking it like a man, headley. Fighting it if you think it’s wrong is acting like a man. Perhaps you’d have advised blacks in the 1950’s that drank from the wrong water fountain or sat in the wrong seats on a bus to take their punishment rather than fighting the rules. Very bright.

Bingo, collegeballfan. It’s always been about the NCAA having had their feelings hurt.

The Grinch

July 22nd, 2011
2:37 pm

The Grinch
July 22nd, 2011
2:34 pm

Imitation is the sincerest form of flattery. Thank you, thank you, pocket protector boy.

BWAAAHAHAHAHAHAHAHAHAHAHAHHA!!!

GT87

July 22nd, 2011
2:38 pm

Noneya hit the nail on the head. Well said.

The Grinch

July 22nd, 2011
2:39 pm

George Stein
July 22nd, 2011
2:35 pm

You gotta be kidding. Look, I’m no fan of the NCAA, but to compare tech’s response to the penalty with racial segregation of the 50’s is a helluva helluva helluva helluva helluva stretch, don’t you think?

The Grinch

July 22nd, 2011
2:41 pm

The Grinch
July 22nd, 2011
2:38 pm

Still imitating? Come on boy, you can bring the juice better than that, can’t you? I mean, you teck boys are all smart and everything, right?

BWAAAAHAHAHAHAHAHAHAHAHAHAHAHA!!!