Shots Fired (Players Issue Statement to NCAA)

[Sacco]

Do the players sign a contract?

Breach of k? Detrimental reliance?

Fraudulent inducement?

There's still some sort of due process problem for the players. They are being punished for something they didn't do.

[couch 'em]

you've got to come up with some cause action-things that are not cause of action in and of themselves which I keep hearing from SMU fans-conspiracy, Class action, equitable (equitable what?), violations of due process(SCOTUS has stated NCAA as a private association is not a state actor so not required to provide constitutional due process)s. Those are legal concepts that require a cause of action that can stand on its own. I don't think I've heard any one on any board identify a specific cause of action that could be filed on behalf of the players with any real specificity. I myself have mentioned that if the NCAA sanctions go into affect you might be able to get a restraining order preventing NCAA from enforcing its penalty because of a failure to follow its own rules. About the best you could hope for is an order sending proceedings back to NCAA and directing them to follow their own rules. Nobody has even come up with specific procedural rules that weren't followed. Its all too speculative until someone comes up with a identifiable cause of action that states a claim upon which relief can be granted. I doubt there is one for students attending a university which is a member of a private voluntary association-the NCAA

As a non-lawyer, can you explain to me how this is different from the Oklahoma vs NCAA case where the NCAA was found to be an illegal restraint of trade?

If the "voluntary association" aspect was so important, wouldn't the outcome have just been "NCAA is a voluntary organization, if you want TV rights you can leave"?

In fact, googling the case shows that they tried that argument in the first case and was unsuccessful.

[CalallenStang]

Stallion - players (especially seniors) can argue NCAA is denying them competitive situations and exposure that would improve their professional prospects, and that the NCAA is negligent in applying the penalty this year after the start of the school year effectively preventing transfer, thus breaching duty of care.

It would be a truly ridiculous argument, but it is an argument.

[CalallenStang]

Do the players sign a contract?

Breach of k? Detrimental reliance?

Fraudulent inducement?

There's still some sort of due process problem for the players. They are being punished for something they didn't do.

I believe the NLI signed by the players is between player and school, not player and NCAA. But could be wrong.

[Rebel10]

Do the players sign a contract?

Breach of k? Detrimental reliance?

Fraudulent inducement?

There's still some sort of due process problem for the players. They are being punished for something they didn't do.

I believe the NLI signed by the players is between player and school, not player and NCAA. But could be wrong.

If a player signs an LOI and decides not go to another school the NCAA will make him sit out a year unless the school releases him. So the national LOI is involving the NCAA. Now if a player signs a financial agreement like Carter did he can change his mind at any time before enrollment with sitting out a year. A financial agreement is between the school and the player. An LOI is between the player, the school and the NCAA.

[Stallion]

Stallion - players (especially seniors) can argue NCAA is denying them competitive situations and exposure that would improve their professional prospects, and that the NCAA is negligent in applying the penalty this year after the start of the school year effectively preventing transfer, thus breaching duty of care.

It would be a truly ridiculous argument, but it is an argument.

rejected by 5th Circuit with regard to standing in 1986 SMU lawsuit-one of the Plaintiffs was a student athlete. So going to have to distinguish facts from that case

[Stallion]

you've got to come up with some cause action-things that are not cause of action in and of themselves which I keep hearing from SMU fans-conspiracy, Class action, equitable (equitable what?), violations of due process(SCOTUS has stated NCAA as a private association is not a state actor so not required to provide constitutional due process)s. Those are legal concepts that require a cause of action that can stand on its own. I don't think I've heard any one on any board identify a specific cause of action that could be filed on behalf of the players with any real specificity. I myself have mentioned that if the NCAA sanctions go into affect you might be able to get a restraining order preventing NCAA from enforcing its penalty because of a failure to follow its own rules. About the best you could hope for is an order sending proceedings back to NCAA and directing them to follow their own rules. Nobody has even come up with specific procedural rules that weren't followed. Its all too speculative until someone comes up with a identifiable cause of action that states a claim upon which relief can be granted. I doubt there is one for students attending a university which is a member of a private voluntary association-the NCAA

As a non-lawyer, can you explain to me how this is different from the Oklahoma vs NCAA case where the NCAA was found to be an illegal restraint of trade?

If the "voluntary association" aspect was so important, wouldn't the outcome have just been "NCAA is a voluntary organization, if you want TV rights you can leave"?

In fact, googling the case shows that they tried that argument in the first case and was unsuccessful.

Many Courts including OU v NCAA have found the NCAA is a classic cartel and a per se violation of anti-trust laws with regard to business revenue streams(TV rights). The O'Bannon case is another(infringement of likeness from gaming and merchandising streams). A third example is restrictions on payments to NCAA assistant coaches-NCAA lost that one BIG. Under per se analysis the Court can take a "quick-look" analysis of the reasonableness of the offending restraint of trade without voluminous evidence and discovery. The issue becomes simply whether the rule is a reasonable restraint of trade under a relatively easy to apply balancing test

Those types of cases differ from disciplinary/enforcement cases dealing with probations/suspensions rather than revenue streams. Under the disciplinary/enforcement cases the Courts looks to whether the enforcement actions are a reasonable exercise of the power voluntarily given to the NCAA, a private association, by its member institutions. A Court is not going to second guess the NCAA unless they failed to apply their own contractual substantive due process rules and procedures (ie notice of allegations, presentation of evidence, right to contest the charges, right to appeal etc). Plus the anti-trust laws are really more designed to prevent anti-competitive business conduct rather interject itself into the conduct of a private association that makes rules designed to actually increase competition by leveling the playing field between academic institutions whose primary mission is education of student athletes. ( I'll admit some commentators have argued this is complete [deleted] even with regard to enforcement/disciplinary proceedings. But I think its the only way for a school like SMU to have a chance to compete and it has been successful in this area.) In fact, the 9th Circuit in O'Bannon just reversed in part in favor of the NCAA with regard to the students currently in school but not the alumni so the Academic Mission defense still has viability especially with regard to current student athletes

But you are right the NCAA has used a similar affirmative defense attempting to justify the restraint of trade. In both types of cases the NCAA has argued that rules limiting revenue streams and enforcement actions are necessary to make sure there is a balanced competitive playing field because these are academic institutions, rather than professional leagues, with primary mission of educating student athletes. It pretty easy to see that the NCAA's justification is much stronger with regard to cheating than it is when these schools have earning millions of dollars from valuable business revenue streams

[CalallenStang]

Stallion - players (especially seniors) can argue NCAA is denying them competitive situations and exposure that would improve their professional prospects, and that the NCAA is negligent in applying the penalty this year after the start of the school year effectively preventing transfer, thus breaching duty of care.

It would be a truly ridiculous argument, but it is an argument.

rejected by 5th Circuit with regard to standing in 1986 SMU lawsuit-one of the Plaintiffs was a student athlete. So going to have to distinguish facts from that case

Fact to be distinguished is (IIRC) penalty was announced before the effected school year was in session so players could transfer for their full final year.

[Stallion]

you could probably run that up the flag pole-that could be the type of procedural issue you need to identify

I was hoping we could argue a similar procedural error that violations all occurred before the effective date of the new penalties.

Sometimes statutes will state whether they can be applied retroactively or prospectively. Otherwise, NCAA precedent could establish how new statutes should be applied. I just don't know on that issue without having the Bylaws and precedents in front of me. We discussed the other day that's the type of argument Tom Brady and the New England Patriots made. The NFL Rulebook was vague about the type of conduct (ball inflation) that would subject them to sanctions in the future

Both arguments are basically stating that the defendant wasn't on notice of the type of conduct that could result in sanctions (hmm but in SMU case its really the lack of the type of sanctions-we knew academic fraud was a violation while in Brady's case it was the lack of notice of conduct ie inflation of the balls)

[Sacco]

I think the Brady-esque argument is good... Can't apply a punishment that wasn't in place at time of violation (notice/due process).

Also, I do think it's a distinguishing fact that seniors couldn't transfer.

[PoconoPony]

Many in media who will regard this as rah-rah PR shenanigans were the same who said O'Bannon lawsuit was a waste of time. NCAA is a PR driven organization, as was perfectly evidenced by terrible PSU soup sandwich and continued attempts to mitigate and UNC punishments. They saw the power a retired former player had and likely fear the potential of a team of current players whose claim of unfair punishment will likely be buttressed by limited UNC and test taking scandal punishments issued to P5 programs. This is close to the perfect storm, and if pressured, may result in NCAA proactively taking action to limit potential negative PR and resulting financial implications.

Sent from my SM-G900V using Tapatalk

So are you saying the players need to file a lawsuit like O'Bannon? I think O'Bannon filed when he had played and earned some money in the NBA to pay for attorney fees, right? And didn't Penn St appeal the sanctions?

PSU did not appeal which is a HUGE sore point with alums to this day. Sanctions were against the football program which had ZERO involvement with Sandusky. PSU's failing was an institutional matter that did not in any manner involve the team or any player. Terrible sanctions for the poor decisions of the President, AD and Adm. Officer.

[ponydawg]

Many in media who will regard this as rah-rah PR shenanigans were the same who said O'Bannon lawsuit was a waste of time. NCAA is a PR driven organization, as was perfectly evidenced by terrible PSU soup sandwich and continued attempts to mitigate and UNC punishments. They saw the power a retired former player had and likely fear the potential of a team of current players whose claim of unfair punishment will likely be buttressed by limited UNC and test taking scandal punishments issued to P5 programs. This is close to the perfect storm, and if pressured, may result in NCAA proactively taking action to limit potential negative PR and resulting financial implications.

Sent from my SM-G900V using Tapatalk

So are you saying the players need to file a lawsuit like O'Bannon? I think O'Bannon filed when he had played and earned some money in the NBA to pay for attorney fees, right? And didn't Penn St appeal the sanctions?

PSU did not appeal which is a HUGE sore point with alums to this day. Sanctions were against the football program which had ZERO involvement with Sandusky. PSU's failing was an institutional matter that did not in any manner involve the team or any player. Terrible sanctions for the poor decisions of the President, AD and Adm. Officer.

Didn't it involve the HEAD COACH of the FOOTBALL team? I think if you appeal something of that nature right off the bat you look really scummy in the public eye. And that football team makes the school a lot of money.

[Stallion]

Penn St didn't appeal the Contractual Settlement with the NCAA but the State of Pennsylvania under a new governor filed a lawsuit based on sovereign immunity and the fact that the NCAA never put Penn St. on notice that they could be held liable for criminal matters when the NCAA rule book doesn't prescribe violations or penalties for criminal conduct. NCAA overreached on the Penn St case-they knew it-and so there were agreed modifications to the penalties

[lollaperuna]

I think this letter should be posted on the front page of this board for the remainder of the year in agreement and support of the players.

[Terry Webster]

does anyone know if the ncaa ever acknowledged the letter to the players?