Shots Fired (Players Issue Statement to NCAA)

[Rebel10]

Rick Hart issues a statement after the student athlete's statement saying that they understand the team's disappointment but are still not going to appeal.

[gostangs]

That's not surprising. They have to make sure the NCAA knows we are not pushing this in the background.

[dbone]

Lot of good stuff in this thread...Stallion is right though...players have no standing to sue. This argument is very interesting to me though....but if SMU doesn't run with it...I don't see how players can.

The argument by the student athletes (not the school): once the 2015-16 school year had already started, any penalties involving post season ban SHOULD HAVE BEEN assessed for the following year, 2016-17. By not doing so, the ncaa violated basic fairness and equal protection under its own rules that allow innocent players to transfer and become eligible immediately at a new school. In this case, the senior student athletes cannot transfer without being harmed both academically and athletically in a material and unfair way. Then, when the ncaa tries to correct its mistake and push the punishment to 2016-17, the underclassmen immediately protest on the basis that had the ncaa acted properly to begin with, they may have made different decisions about their individual academic and athletic futures. Therefore the ncaa has now harmed them unfairly. This can be won.

In 1985 our appeal was denied in August supposedly giving us enough time to transfer...and thus the NCAA could say innocent players harmed by the penalty "chose" to stay at SMU. This negated any "harm" imposed on us by the NCAA. The NCAA is big on "control" and is usually very careful to make it look like innocent players have options. In the new SMU case...I think the NCAA screwed up penalizing the players for this season after classes had begun and without the option of transferring.

[ojaipony]

Lock arms! Get to Moody and get behind these players!

[KWhiz77]

Sorry if you guys already posted this article today. Not sure any of these would work, but at least some are listening out there...

How SMU BKB Players Can Make NCAA Pay Attention: ‘Committee of Revenue-Sport Student-Athletes’
SMU Players (and all schools) Need a ‘Committee of Revenue-Sport Student-Athletes’
Big Time College Sports and the NCAA
https://brewonsouthu.wordpress.com/


SMU’s basketball players (apparently the entire team) have just issued a joint statement expressing their extreme displeasure with the NCAA’s recent sanctions on Coach Larry Brown and the team, including a ban on post-season play. Their instincts are good, and one more indication that athletes are increasingly willing to “get out of the boat” and speak out concerning their own interests. (Just as Shabazz at UConn, Si Cyanovic at Illinois, and Kain Colter at Northwestern all courageously “got out of the boat” to speak out.) But the SMU players need to consider several other issues:

1) Challenge the Non-Compete in the NLI, Based upon a change of circumstances: The National Letter of Intent which the players signed includes a Non-Compete Agreement, which precludes immediate transfer, by imposing a one-year “sit-out” penalty if any player chooses to transfer. This is an important, basic building-block of the NCAA’s entire college sports business model, without which that model could not persist. (Yes, I know, Non-competes are usually only used to bind employees, but this is the byzantine, fantasyland of NCAA sports.)

The NCAA allows (it claims), the NCA to be waived if the player’s appeal shows “extenuating circumstances” — though the NCAA refuses to define which specific circumstances are “extenuating”, and never allows waiver of the NCA based merely upon the imposition of sanctions by the NCAA.

It is not unreasonable to conclude that the NCAA penalties here — the post-season ban — are “extenuating” circumstances: after all, doesn’t a young high school player “commit” with the full expectation that the school will play by the rules? The rule-breaking found by the NCAA here is just the kind of material change in circumstances which could cause a court to “void” the NCA contained in the NLI.

(In fact, the absence of such an NCAA bylaw which would immediately void all NCA’s signed by athletes in the that sport, allowing them to all immediately transfer and play, is proof that the NCAA system is not serious about eliminating ‘cheating. Such an automatic “release” of NCA restrictions would serve as a severe, strong deterrent against “cheating”, and would probably eliminate the need for the silly “show cause” orders which are now often used to sanction offending coaches, and other silly sanctions.)

I suspect the SMU players don’t want to transfer, if they can help it, but creating the threat of such mass-transfer will increase bargaining power as the players push their cause.

2. Absence of ‘Sector-Based” negotiation and representation: The central defect in the status of the college athlete is the absence of interest-group, ‘sector-based’ representation and negotiation (which is often, but not always provided by union representation.) Every disadvantage foisted upon the college athlete is one where he has almost no larger membership organization to push for his economic or other interests — in an era when the NCAA and the individual school are powerful, wealthy, and able to obtain top-drawer legal advice. The revenue-sport athletes have zero “heft”, and are always left to bargain on their own. This is particularly true now, since the NLRB’s craven, entirely unprincipled refusal to assert jurisdiction over the Northwestern case. But the SMU basketball players are not without options:

3. Form a “Committee of Revenue-Sport Student-Athletes”: The NCAA and schools have set up the Student-Athlete Advisory Councils with the intent of diluting, if not completely eliminating, the economic (and moral) power of the approximately 100 players on campus — the basketball and football players — whose work generates staggering income for the school. The SAAC’s usually do not adequately represent the interests of the basketball and football players, and those players need to form a separate “Revenue-Sport Athlete Group” to meet and consider their own interests. (An admittedly oversimplified view of the SAAC is that the interests of the “Revenue” and “Non-revenue” athletes are often in significant conflict, since the latter sports are funded entirely by the former.)

4. The NLRB applies to SMU, since it is a private school, and the SMU basketball players might consider NLRB certification.

5. The NCAA’s finding of significant violation means that the SMU basketball program is no longer amateur: Hear me out, this is a novel argument, only because the NCAA’s current enforcement structure is not based in the real world. (In fact, if the NCAA actually wanted powerful, effective enforcement which would surely deter chearing, its bylaws would establish that a finding of major violation mandates an immediate loss of amateur status. Stop and think: does not the NCAA revoke the ‘amateur’ status of the player who is found in significant violation of some bylaw? Why should there not be a parallel sanction for a violating school?) But, even without such a common-sense NCAA bylaw, SMU players still have a legal argument that they are employees, because the finding of SMU violations caused SMU basketball to lose amateur status, and that, without that ‘amateurism’ protection, the SMU players were employees of SMU, for many purposes, including Social Security, Unemployment, FICA, wage and hour laws, and workers’ compensation.

[TidePony]

I was at Caldwell, opened Moody, and I'm flying out to Vegas with them too! Yes, lock arms and Pony the eff Up!
#FreetheGodfathder #MoodyMad

[SMUHeel]

Excellent statement. Too bad the "adults" aren't on the same page and don't have their back

[smupony94]

Excellent statement. Too bad the "adults" aren't on the same page and don't have their back

Too bad you are out of the loop

[Stallion]

did the players file this with the NCAA before the deadline?


might be a good idea if they are arguing that they have some type of due process rights to be heard by the NCAA (and/or later litigated). Generally, a party that fails to seek all its appellate remedies waives the legal rights to sue based on an affirmative defense of failure to exhaust administrative remedies. However, players in this case aren't technically parties to the NCAA proceeding-although an argument could be made that they are "virtually represented" by SMU. Players could then argue that their interests are not identical or aligned to the interests of SMU. So they should be heard. It would be a unique argument-probably unsuccessful but it probably is not something the NCAA wants highlighted to the press. Why don't the players have representation before the NCAA if there is a conflict of interest between the school and players. If a "conflict of interest" exists traditionally a tribunal should stay proceedings until counsel can be appointed to zealously represent the interests of the players. Might be able to claim their letter was in the nature of a pro se answer which requires greater protection from the tribunal to the party who hasn't been represented by counsel. Then at least you've distinguished the present case from the 1986 5th Circuit Court opinion. Right now there is very little to differentiate the binding precedent. If I'm the litigating attorney, I'd much rather have those facts to argue standing in federal court-even if the NCAA refuses to file or consider the players pro se letter

[dbone]

This thing could get out of control...I thought NCAA guidelines were that any Junior or Senior could transfer without having to sit out a year if current school was on probation for remainder of their eligibility.

[fifty]

I nominate stallion to be their counsel.

[Stallion]

Only players who forfeit their FINAL year of eligibility due to the post season ban are eligible to transfer under a special transfer rule

[JasonB]

1) This is a great statement to put pressure on the NCAA and win the battle of public opinion. SMU took a PR hit here with everyone saying they are back to cheating and Larry is a crook. The players have come out in a unified voice and made it clear that isn't the case. And this statement has a lot more weight than anything the school itself could put out. The appeal put forth by the school is in the best interest of the program, and now this statement is an effort to win the PR battle that a failed appeal of a post season ban would not be able to win.

2) More than that, in my opinion, this is a really, really strong message to future recruits. SMU runs a clean program. This was a one-off incident that the team and Larry wasn't aware of, and we got rid of the cancer. Larry is awesome. SMU is doing things the right way. Come to SMU and join the family. This is where you want to be.

[RebStang]

I was at Caldwell, opened Moody, and I'm flying out to Vegas with them too! Yes, lock arms and Pony the eff Up!
#FreetheGodfathder #MoodyMad

Wanna bring a starving grad student along? I'll buy the adult beverages.

[TidePony]

Reb, maybe next time!