Rick Hart the muppet AD

[RGV Pony]

More thoughts from the interested observer to Stallions and now Saccos intent point:

" Does the "intent" drive the bus or does the "advantage" drive the bus? In other words, do I commit a Level I violation because I intend to create a substantial or extensive advantage when I am too stupid to realize that all I am really doing is creating an ordinary advantage or no advantage at all? Or is it only Level I if the advantage is demonstrably substantial or extensive? And given that those are pretty subjective ends...well the more I think about this the more I think we could poke holes in the NCAA position on appeal. And if there is ambiguity in the enforcement language, shouldn't that be construed against the drafter?"

[Stallion]

Restatement of Law(2d) cited by Texas Supreme Court

The Restatement differentiates between intentional, reckless and negligent conduct. “The word ‘intent’ ... denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Restatement (Second) of Torts § 8A (1965).

[2ndandlong]

Should the athlete and the University be punished in those circumstances.

Should the athlete? Hell no. It's complete bullsh, and I am absolutely furious about it.

I have never defended that position. I have only tried to provide clarification on what I have found in reading NCAA rules, guidelines and rulings. In everything I read, I do not see a concrete basis to overturn potentially 4 level I violations which is what I understand would be required to lift the postseason ban. Sure, there are holes in a couple of them, but I do not see where that is enough to sufficiently overturn the postseason ban.

I am certain that SMU's legal counsel is much more informed on these topics, and I wish them the happiest hunting.

[smusportspage]

Wasn't KF already cleared by the NCAA by the time the online class was taken? Maybe I am mistaken about that. Was it not SMU that was the hold up?

[Stallion]

Cleared by NCAA or admitted by SMU?-two different things

Timeline from Findings:
April 2, 2013-committed to SMU
June 2, 2013-former assistant coach met with KF and mom and encouraged to take +1 course
June 17-July 3, 2013 administrative assistant completed KF's assignments and exams online for +1 course
July 7-KF receives A-

I haven't found finding on date KF was ADMITTED by SMU or CLEARED the NCAA Eligibility Center

usually with a delayed transcript its going to be late summer. Note they only footnoted the DSID grade change and related changes in the transcript so those facts aren't fleshed out-so you might be able to submit supplemental evidence on that if facts aren't in record. It sure would help if SMU admitted him BEFORE June 17, 2013

[Mestengo]

I'm ready for a lobotomy. Shock treatment will do

[RGV Pony]

Restatement of Law(2d) cited by Texas Supreme Court

The Restatement differentiates between intentional, reckless and negligent conduct. “The word ‘intent’ ... denote[s] that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.” Restatement (Second) of Torts § 8A (1965).

Again only quoting

"No, no Texas court authority is going to be binding on NCAA, or any court's for that matter, which is not to say they would not use court decisions for guidance. But in the previous query, it's not a matter of what intent means, it's a matter of whether the consequences are what was intended. See I think the consequences in this case don't meet the definition of "substantial or extensive" ; under these circumstances for reasons stated, or at least there's an argument to be made that they don't. I don't think the intent to create an advantage for SMU can be debated, and if the intent was to create a substantial or extensive benefit, regardless of the actual outcome, the NCAA can focus on the intent rather than the severity of the consequences. But that would be bad precedent for them, in my opinion, because assuming they follow their own precedent (yeah, I know) I think it would require them to dole out harsher punishments across the board regardless of the severity of the crime. To use the instant example, the $100 handshake for good performance could become a killer, if the NCAA takes the position that the intent of the violation is to create a substantial or extensive advantage in recruiting, let's say. Players host recruits right? When they tell them about the $100 handshake, or god forbid introduce them to the $100 handshaker, does that make the intent rise to Level 1 and automatic post-season ban? You'd have a whole bunch of programs, big and small, freaking out I suspect, were that the result."

[EastStang]

If this holds up. UT supporters should all send $2 to TCU and then break the law and sign up for classes as a TCU football player, and then tell Fatterson his player's grade was a result of academic fraud. Then Fatterson has to either (1) suspend his whole team; and risk forfeiture or (2) sit on the info and hope it goes away thus bringing huge penalties. The $2 donors are now boosters, they aided a player in academic fraud, and the school gets dinged for a Level 1 violation. This is the Trojan Horse way of killing off opposing programs.

[smupony94]

EastStang I will stay on your good side from now on

[Stallion]

Restatement is a general statement of prevailing or majority view of American law that can (or might not) be adopted by a state through statute or Supreme Court law which this one was. All US Courts would consider The Restatement persuasive law although they may decide not to apply it in their jurisdiction. Its commonly cited. I doubt the word intent under NCAA precedent would differ substantially especially since the NCAA is a multi-jurisdictional body. The essence of "intent" is the act (fraudulent academic work) which would be a Level 1 violation.("Level 1-A severe breach of conduct is one or more bylaw violations..."). Intending to admit or clear a student athlete would be a substantial or extensive recruiting advantage. I don't know how you separate them.

[RGV Pony]

There are those that say you perhaps don't understand the question /point or are just ignoring. I think you're a good guy. That said :

"I've said before, because this is a new scheme with some stated enforcement standards that are arguably ambiguous and no substantive prior decisions, there is no better time or more level playing field. Does that equate to an advantage? Since the NCAA is the judge, jury and appellate body, who knows. There's only one way to find out. But if this penalty, as is, under these facts, becomes the precedent, it ought to tie the NCAA's hands on NC and Louisville. How do they argue out from under Level 1 given their clear "intent" to provide a "substantial or excessive recruiting or other "advantage"; I think are the words."

Anyway can we stipulate all this is at least a basis (and I, rgv pony, am neither for nor against. Just an interested bystander)

[gostangs]

it is quite natural for lawyers to want a clear basis, so that the appeal feels at very least likely so that time and money is not wasted. However this is not a court we are dealing with, but a separate NCAA committee who will have their own bias. The Penn state situation was found to be excessive, and in appeal they knocked out much if it. This committee will want some wiggle room for three other schools that mean more to the NCAA - so I think there will be a reason for them to go our way, if we keep our appeal modest.

as an aside - I found the reference in the report to our repeat offender status to be particularly offensive. There is not one overlapping individual to any of our previous issues (at least the issues of substance). They are on very dangerous ground there if they expect any school with some history of this to be a willing self reporter.

[Stallion]

separate committees consider the sanctions-there is an investigative staff, a hearing staff and an appellate staff-that's the type of due process NCAA teams bargained for. When there is no precedent due to the amendment, revision or creation of a new statute you look to the statute for guidance first but if there is none available then you attempt to utilize prior precedent interpreting similar or perhaps identical terms. Then you argue whether the old precedent is analogous to the new statute. I don't have all those statute and old precedents in front of me. I'm just generally talking about general statutory interpretation. Sometimes you make your best argument and see what the appellate court says. No guarantees in any litigation just informed guesses based on statute and prior precedent. Again I favor SMU filing an appeal-but haven't seen a strong argument why sanctions should be modified-based on the limited info we have about SMU's position. There maybe procedural errors that no one is aware of. Those things are beyond my ability to analyze-especially the type of procedural issues in the USC, UCF cases. The Penn St. case involved arguable procedural errors in the context of a Agreed Stipulated Agreement which was later modified. Never actually litigated at a hearing or trial. They just accepted the internal investigation

[RGV Pony]

So I guess to rephrase my question. Basis for an appeal now? Yes or no and anything other than no is a yes?

[Stallion]

I think there is a "reason" for an appeal (delay and dance) but I haven't seen a well articulated "basis" yet. That's OK I'm not reviewing the record for SMU. That's someone else's job. Hope they find some. I've said multiple times now that I have no problem with an appeal.

Final important point-filing an appeal is what lawyers call a "Business Decision" by SMU and considerations are often different than strictly a "Legal Opinion" of its lawyers. The Business Decision involves things like community reputation, costs, negative/positive consequences to university, team and employees. The University not their lawyers need to make that decision