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
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186 comments Add your comment
Techy
July 22nd, 2011
2:43 pm
I dont think he was comparing the two. Just giving an example of standing up for what you believe to be the right thing.
The Grinch
July 22nd, 2011
2:44 pm
Go Jackets, can’t wait for the upcoming season. THWG!!!
BWAAAAHAHAHAHAHAHAHAHA!!!!!
Stinger 2
July 22nd, 2011
2:45 pm
Noneya: I am still laughing about your posted conversation between DRad and CPJ. Best one I have read in a long time. Please try another one when you find something else so ridiculious its funny.
George "Stretch" Stein
July 22nd, 2011
2:45 pm
Nuff said – preposterous – poor choice of words – fool. Comments like that make hope the NCAA tells GT -you want to play hardball then we will play hardball.
George you are usually somewhat level headed – have you been drinking ?
The Grinch
July 22nd, 2011
2:46 pm
Techy
July 22nd, 2011
2:43 pm
I understand, but the tech issue pales in comparison. Truthfully, I hope tech wins the appeal. I look forward to the day when someone, maybe the Supreme Court, lets the air out of the NCAA. It’ll be good for everyone.
The Grinch
July 22nd, 2011
2:48 pm
The Grinch
July 22nd, 2011
2:44 pm
Dude, you are soooooo lame. Jackin’ a handle and your best is “boogers”, “douche”, and “THWG”? I reallly for sorry for you. Must be some life you live….
BWAAAHAHAHAHAHAHAHAHAHAHAHAHA!!!
dude
July 22nd, 2011
2:49 pm
Ken – thx for the insightful and objective description of the issue. It’s about behavior the rules, not the accused team.
Techy
July 22nd, 2011
2:50 pm
The Grinch
July 22nd, 2011
2:46 pm
Well, you know the penalties are of zero consequence going forward so if the dont win the appeal, I will not care. But I do think that it is a no brainer to do given the strange facts surrounding this investigation.
George Stein
July 22nd, 2011
2:51 pm
Actually, Ryan, it would be helpful if you could define ineligible.
What’s funny is that if you bothered to read the report, Thomas’ ineligibility was hardly clear. The NCAA got hung on whether the clothes were given to him by his cousin or the roommate, which is a distinction without a real difference. If it was the runner for the agent, I’d understand. But the facts were at best cloudy and Thomas should not have been held out based on a hunch by the NCAA.
Old Gold Britches
July 22nd, 2011
2:53 pm
Tell the bartender no more drinks for the grinch …..please!
George Stein
July 22nd, 2011
2:55 pm
I’m not comparing Tech’s punishment with segregation. I’m suggesting that fighting your punishment when you think it’s wrong isn’t whining. If I chose a poor analogy, I apologize.
Delbert D.
July 22nd, 2011
2:59 pm
I always thought that the only way the cops could sneak up on people is with a warrant signed by a judge. Seems the NCAA procedure to deal with institutions is “don’t ask, don’t tell”, and “we’ll let you know what’s wrong if there is anything there.”
The Grinch
July 22nd, 2011
3:07 pm
Old Gold Britches
July 22nd, 2011
2:53 pm
I’ve never had the opportunity to patronize your establishment, but I’m sure the liquor isn’t watered down too much. Looks like that teck engineering degree worked out well for you.
BWAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!!
Ramlin Man
July 22nd, 2011
3:13 pm
Techy,
Adams would be a nice pickup and would brighten my day.
I swear if all the posts I had written that disappeared on the site downloaded at one time it would crash.
The Grinch
July 22nd, 2011
3:15 pm
Ramlin Man
July 22nd, 2011
3:13 pm
I’ve had that happen before, and you know what solved it for me? I changed the email address block. I can’t guarantee it will work for you, but it’s worked for me in the past. Heck, you can even insert a bogus email address and it may work.
The Grinch
July 22nd, 2011
3:20 pm
tech fans take note – if you’re looking for a player to get excited about, keep your eye on the Snoddy kid you signed out of Carrollton. He’s a bolt of lightning and a pretty good kid all around. He ran the second fastest 100 meter dash for high schoolers in the country this past school year. I feel he will excel in PJ’s offensive set. Remember, Broderick Snoddy.
Terry
July 22nd, 2011
3:22 pm
Looks like the NCAA will be after Tech every time they sneeze from now on, not saying Tech was wrong, but some times it better to bite the bullet instead of having to look over your shoulder all the time, and if the NCAA had a axe to grind with Tech before this, it will have a big axe to grind now.
Ugag
July 22nd, 2011
3:23 pm
It is about time for the Dawg’s to have a player arrested!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!
The Grinch
July 22nd, 2011
3:26 pm
Ugag
July 22nd, 2011
3:23 pm
Will this happen before or after you mother is arrested again?
BWAHAHAHAHAHAHAHAHAHAHAHAHAHA!!!!
Delbert D.
July 22nd, 2011
3:28 pm
New Provisional Guidelines for Student-Athletes
1. You will not answer phone calls. Possession of personal cellular telephones is not permitted.
2. You will not open any mail addressed to you.
3. You will not engage in conversations with anyone other than team members, the coaching staff and classroom instructors. Discussions will be limited to approved topics.
4. You may use only computers provided by the institution, and these computers will have email and any other forms of messaging disabled.
5. When not attending classes or practice, you will remain in your assigned dormitory at all times. No visitors are permitted.
6. You will be marched to meals at the dining hall along with all of your teammates.
7. You will treat your family and former friends as enemy agents who are intent on doing you harm.
8. You will not accept any gift or offer of anything that may be construed to have financial value from anyone. Plain tap water for emergency hydration is the only exception.
Additional restrictive guidelines will be added as loopholes are discovered.
Enjoy you stay at ___________ (institution of higher learning).
Sincerely,
NCAA Administrator of Student-Athlete Control
George Stein
July 22nd, 2011
3:29 pm
That might be fair, Terry. I’d be fine with a UGA fan saying we shouldn’t appeal for that reason. I’m not certain I agree, but I do understand the logic.
SuperB
July 22nd, 2011
3:29 pm
As with Ohio State last year, GT played Thomas because– they wanted to win. they should have held him out and taken their chances. Ditto for the real bad cheaters at Ohio State.
The Grinch
July 22nd, 2011
3:35 pm
Just a question – in the game(s) that Thomas played in where he may have been ineligible, what impact did he have? I know that’s not relevant according to the NCAA, but just curious if tech truly felt he needed to play in order for them to win.
Ramlin Man
July 22nd, 2011
3:39 pm
Delbert thanks for the laugh.
SuperB,
I agree to a point. Ohio State and the NCAA knew there was actual wrong doing and looked the other way for money reasons. GT knew there was the preception of wrong doing and a argument can be made that Thomas should have sat. The staff thought there was no wrong doing and was lead to believe the same by the NCAA. Also remember that Burnett was being investigated and was exonerated by the NCAA so should he have been sat out then later apoligized to for missing the final three games. He is also the one that was spoken to by CPJ so it is wierd that nothing further was ruled on in the case. The whole case is wierd and was mishandles on both ends by people that are suppose to be professionals.
Ramlin Man
July 22nd, 2011
3:41 pm
Grinch,
Just look at the passing stats from when he played and when he did not. He was a big part in the win. Even if you take the receiving stats out of the picture he was a great blocker and opened huge holes for the backs.
George Stein
July 22nd, 2011
3:41 pm
Nicely done, Delbert.
The Grinch
July 22nd, 2011
3:42 pm
Ramlin Man
July 22nd, 2011
3:39 pm
Don’t you know you’re not supposed to mention “professionals” and the “NCAA” in the same post?
BWAAHAHAHAHAHAHAHAHAHA!!
George Stein
July 22nd, 2011
3:44 pm
C’mon Grinch. He dropped the most important pass of the game against y’all!
Actually he had the one 70 yard TD on the first play of the second half against UGA and had several big plays against Climpson. I’ve tried to forget the Iowa game as it’s the only time in three seasons I was frustrated by Johnson’s offense b
The Grinch
July 22nd, 2011
3:45 pm
Ramlin Man
July 22nd, 2011
3:41 pm
That’s the tough thing. Should you sit one of your better players if you “think” there could have been wrong doing. Should you hold him out and later find he was okay to play? Potentially lose a game you could have won? That leaves coaches and schools in a predicament. If tech truly thought he was okay, then I don’t blame them for playing him and challenging the penalty.
George Stein
July 22nd, 2011
3:47 pm
Agreed, Rambin Man. He was a monster blocked. It’s what Bama will miss most about Julio. Hopefully the Falcons take advantage of that skill.
bRO
July 22nd, 2011
3:47 pm
IT IS TIME FOR COLLEGES TO REDEFINE THE AUTHORITY OF THE NCAA. THEY ARE LIKE A DICTATOR AND LEAVE NO RECOURSE TO THE INVESTIGATED SCHOOL OR PLAYER. A LITTLE LEAGEL REPRESENTATION WOULD BE FAIR TO ALL PARTIES. DICTATORS ARE SOMETHING WE FIGHT AGAINST.
George Stein
July 22nd, 2011
3:53 pm
It’s the hardest call, Grinch. Imagine having to hold Murray out of the Tennessee or Florida game when the facts are in dispute. I don’t know what the right thing to do is.
The Grinch
July 22nd, 2011
3:53 pm
George Stein
July 22nd, 2011
3:44 pm
Hey, I’ll never forget the dropped pass. That image is seered in my memory and his misfortune was crucial to us winning. I wasn’t playing devil’s advocate. I truly didn’t know the exact games in question. So I guess his cousin, or someone else, supposedly gave him the clothes just before the UGA game.
How does an allegation like that come to light? Are the coaches sitting around before a team meeting and in walks Thomas and one of the coaches says “nice threads, Bay Bay”? Seriously, how does $300 in clothes become a talking point that ultimately leads to sanctions from the NCAA? This kind of stuff just blows my mind.
The Grinch
July 22nd, 2011
3:56 pm
bRO
July 22nd, 2011
3:47 pm
I don’t think the colleges will, or even can. I believe it will take someone pushing this up to the Supreme Court. We darn sure don’t want Congress involved. Those clowns can’t even come up with a budget in over 2 years, but the Supremes could really do some earth shaking.
George Stein
July 22nd, 2011
4:03 pm
No big deal, Grinch. Just a jab at my own team.
I have no idea where the Gestapo got the tip. It originally started with Morgan Burnett. Where that came from is a mystery we’ll probably never know.
What I do know is that if I was a fan of another school, I’d be terrified by this because they essentially punished Tech for not being “nice” during the investigation and for, in their opinion, having an obstructionist attitude. But they never defined what that means, which can get any other school on hot water, too.
Pitbull
July 22nd, 2011
4:05 pm
Hey, just tell the NCAA that you’re Georgia Tech and the rules don’t apply to you – you just expect everybody else to have to follow them.
Maybe they can legalize chop blocks for you. Oh wait, they already have!
I respect you less for the way you babies have responded to the NCAA penalities than for actually doing what you did to get on probation which of course was manipulating the truth – a great Tech tradition.
Old Gold Grad
July 22nd, 2011
4:10 pm
Mommy mommy, they’re making me play by the rules!!!
It’s just not fair! Don’t they know that I’m Georgia Tech?
I’m special and entitled too!!!
tar and feathers party
July 22nd, 2011
4:11 pm
I for one am ready, willing, and able to make war on the ncaa! No survivors, you stinking scum!
George Stein
July 22nd, 2011
4:11 pm
Enlighten me on what we did, Pitbull.
tar and feathers party
July 22nd, 2011
4:12 pm
and I piss in the face of uga!
George Stein
July 22nd, 2011
4:12 pm
Any other screen names you have, Pitbull?
Ramblin Man
July 22nd, 2011
4:16 pm
Grinch,
That’s part of the rub in this whole thing. Burnett was another huge part of the team only on defense so the staff took a gamble played both with both having the same accusation against them and well you have what we have now.
Old Blind Dawg
July 22nd, 2011
4:20 pm
The NCAA is broken and we all know it. Funny how as fans we sort of support the NCAA when they get after a rival and then scream bloody murder when they knock on our own door.
Did GT self report this seemingly small violation or were they caught completely off guard? I can see the confusion either way but I just don’t get the hammer that was applied. I didn’t think A.J. was treated fairly either but it is what it is and I suspect the NCAA is trying to send a not so subtle message to the schools and players.
I can think of a few schools currently under the microscope that, based on the GT ruling, should be absolutely terrified.
Pitbull
July 22nd, 2011
4:21 pm
Obviously George Stein either does not know how to read or doesn’t let the facts get in the way.
Go clean that old gold crap out of your diaper you baby and take your medicine like a man.
headley lamar
July 22nd, 2011
4:29 pm
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.
Its African American not “blacks”
To even compare Tech getting caught cheating with segregation just shows how far Tech apologists will take it.
Tech can do no wrong in their eyes and they will go to any lengths to show you that.
Sad. Really really sad.
George Stein
July 22nd, 2011
4:31 pm
Nice job avoiding the question, Pitbull. Not surprising, though v
headley lamar
July 22nd, 2011
4:32 pm
Enlighten me on what we did, Pitbull.
You coached the players on what to say to the NCAA and your AD lied to the NCAA when he agreed to not tell manboobs players were going to be interviewed.
Second major violation in ten years. Better not get another one or at least cooperate with the NCAA next time or you may not be playing football at all.
George Stein
July 22nd, 2011
4:33 pm
You totally missed the point, headley. Also not surprising. You are free to explain to me how we “cheated” though since headley was incapable.
headley lamar
July 22nd, 2011
4:33 pm
It would be easier to believe the Tech apologists if they didn’t have a history of doing this sort of thing.
They just came off probation for crying out loud.
George Stein
July 22nd, 2011
4:34 pm
What are the odds headley and Pitbull are the same person?