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.

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Ken Sugiura, AJC