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Quick Reaction: Today Could Be Forgotten

When I was little, and I’m assuming statutes of limitation apply now, we didn’t just get ‘spankings’ like some people get.  We got ‘whoopins’ (Whuh-Pens) and we got them with anything that was available.  Orange industrial cord? Sure why not? Random broken off chair leg? Have at it, could be fun! Sometimes, one of us would think it would be a lesser whoppin if we came forward and said what we did wrong…or here is a thought, we pick out the switch or instrument of our punishment, then we would be spared the brunt of the anger or response.

Well…UofL did both and not only got the industrial cord, they got the chair leg, the thorny switch, and still has to go to their room and think about what they did.

All is lost right? Not entirely and I will tell you why.

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First, UofL will appeal and that is the correct decision. This is a huge overreach by a committee that has no idea what they are up against.  The problem with the Committee on Infractions (COI) is they have no true limits based on precedent like in our real legal system.  I view the COI as more of an administrative procedure as they administer the proceedings of the NCAA and its bylaws. The COI also staffs the committees on a rotating basis so the committee that reviewed Syracuse is not the one reviewing UofL or Penn State.

The problem I see with them not being completely bound by precedent and operating in this manner is it, to me at least, seems like a direct violation of due process. Under the theory of due process, how and why laws are enforced must apply to all persons as well as to corporations.

How the law is applied is procedural due process. For example, is a law too vague? Is it applied fairly to all?  A law prohibiting stupidity may be too vague if we don’t define stupidity and hold to that standard. Laws or rules must be clear and fair and be applied consistently. At issue here is how the NCAA is looking at the benefits or the acts in question. While the NCAA is not a court proceeding basic fairness should still apply.

In a process like the COI, an administrative agency should follow principles of fundamental fairness in their application.   In State ex rel. White v. Parsons, 199 W. Va. 1 (W. Va. 1996), the court held that administrative agencies are limited by principles of fundamental fairness.  The court further held that “cardinal test of the presence or absence of due process of law in an administrative proceeding is the presence or absence of the rudiments of fair play long known to law.”

In Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976), the court stated that factors to be considered in determining whether administrative procedures provide due process are; the fairness and reliability of the existing procedures, and the probable value of additional procedural safeguards.

In this case, UofL has not been treated in accordance with other programs and one big component is the focus on how to assign penalty or the basis of the penalty.  The value of the improper benefit to any student athlete should be the basis for the ruling, not how sordid the act is or the shock value in saying sex scandal over and over. (some media people love clickbait)

Furthermore, in the interest of fairness, assessing ineligibility and then assigning a prescribed amount of time for improper benefits is a slippery and unjust slope.  In the case of Derrick Rose and his fake test score to get INTO college…it is only fair to deduce that he is ineligible for the duration of his one and done college career. He was ineligible from the start and one cannot simply requalify for college while being in college.  I look to the case of Johnny Manziel and improper benefits.  Johnny Football was able to regain eligibility and there were select numbers of games to sit, not an entire season.

For an improper benefit, the crime should be punished sure, but it should not be for a prescribed duration covering a range of games/seasons.  I can see the Syracuse route, of the University being able to select certain games to equal a specified amount by the NCAA but not impacting postseason victories.

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And who exactly are these ineligible players? We have guesses, but without the names and games, some hysteria is not yet warranted.  Most of the players who could potentially be involved were no longer players and under the purview of the NCAA.  Off the top of my head I can think of Angel Nunez and maybe Anton Gill as players the NCAA could bully question. If UofL is to vacate games they had an impact I am more than fine to vacate all of Angel’s 3’s in that 30 point drubbing of that years NCAA Champion UCONN.

Another point that could be made, in jest but maybe seriously, is that these benefits were not only for athletes.  I am sure there were other parties they arranged for dances, and the book confirms as much.  Using the infamous UNC point of order and the NCAA at one point agreed (their newest NOA may go back on this a bit) that the benefits were not just for student athletes and since others took the fake classes all was well on that end. Maybe this can be a jurisdictional suit like the one UNC has saying due to that fact, the NCAA can’t do anything because it is not under their regulations. I doubt this is the strategy but having extra arguments is always a plus. It goes back to the central point of this whole argument and that is due process or fairness.

The system must be fair and actions should be punished similarly.  You can’t make the rules up to a game in the 3rd quarter just to make sure your favorite team wins.  In the old days when we would play NBA Live on PlayStation, if we were losing we’d turn the fouls off and punch or push down opposing players to steal the ball and run up the score to get back ahead.

Appeals and lawsuits will make this drag on for much longer than anticipated.  Ultimately, I think the penalties will be lessened and today will be remembered as the day…actually it can be a day to completely forget and I say schedule next seasons championship celebration on June 15, 2018.

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The COI has turned the fouls off here in the 3rd, and punched UofL as hard as it can…but UofL will not be pushed down.  UofL will stay standing and take the high road winning another banner this coming season.

 

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About Terrance Sullivan

Contributor on CSZ UofL '09 UofL Law '12 @Tasullivan

Posted on June 15, 2017, in Louisville Athletics. Bookmark the permalink. Leave a comment.

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