Ever since the news broke last week about the punishment that was being handed down by the NCAA, I have had several inquiries on what the school could do, legally, to overturn the action. I have attempted to answer a number of them in 140 characters or less, but that platform seems difficult at best.  So I thought I would come here and try to unpack the vast majority of what people seem to be interested in.

Let me say from the outset, that I will restrict my analysis to the “legal” avenues available to the University.  This is for a couple of reasons.  First, Eric Crawford did an outstanding job yesterday with his column discussing the appeals process. (Eric’s column)  Second, as a natural cynic, I don’t believe the NCAA will give Louisville a sniff at what they are looking for.  My best guess would be that they will allow Pitino to serve his suspension at the beginning of the season, but all other punishments will remain.

While I do not believe the NCAA will restore Louisville’s record, or more importantly, banners, it is necessary to play out the entire appeals process before running to court.  Courts are reluctant to intervene in matters generally, but they will almost never step in until all of the available avenues of recourse have been exhausted.  So Louisville must go through the process, regardless of what they believe the outcome will likely be.

When considering what the University’s legal chances are, it is important to understand what the courts have historically done with the NCAA cases.  Fair warning though, it is not a rosy picture that I am about to paint for you.

Prior Cases

Almost from the outset, Louisville fans have held to this notion that regardless of what the appeals committee says, the best opportunity for vindication lies with the court system.  Admittedly, I too was a bit persuaded by that logic and even nodded my head in unison when reading a series of tweets.  I mean, if the NCAA can be bullied into relenting on Penn State and if Jerry Tarkanian can beat the NCAA in court, then anything is possible, right?  In short, this is a great time to throw a “well actually” into the conversation; so here goes.

Penn State had mixed results in the courts but ultimately did receive some relief from the sanctions levied in wake of the Sandusky scandal that plagued their university.  First, the Governor of Pennsylvania sued in federal court based on an anti-trust theory of liability.  That suit was dismissed by a federal judge in June of 2013.  State Senator, Jake Corman also filed a lawsuit in Pennsylvania state court arguing that all of the $60 million dollars in fines collected by the NCAA should be spent in the state of Pennsylvania.  During the lead-up to the trial, both sides came together and negotiated a settlement which resulted in the fine money being spent in Pennsylvania, and ultimately a restoration of some of Joe Paterno’s vacated wins.  You can read about Corman’s victory here.  During discovery in Corman’s lawsuit it became very clear that the NCAA themselves knew they were treading on thin ice, ultimately, they caved.

A key thing that Louisville fans need to remember when judging whether or not the courts can provide similar relief to U of L is that the cases are incredibly distinguishable.  In the Penn State case, there was never solid ground for the NCAA to attack the university at all from a compliance standpoint.  While no one will argue that the behavior at Penn State wasn’t reprehensible, there was no NCAA rule broken because, quite frankly, the NCAA was not set up to handle these types of issues.  What Sandusky did, and to a large extent the other silent administrators did as well, was criminal conduct, not a violation of NCAA rules.

In Louisville’s case, there is no dispute amongst the parties that what occurred on campus was a violation of NCAA rules and regulations.  The only argument seems to be what level of violation was it?  The school has argued that since this is an impermissible benefits case, the dollar amount matters.  The NCAA has said that it does not.  The courts may ultimately be the final determination, but case law seems to indicate that federal courts and states courts as well, give wide deference to an administrative body when determining how to interpret the agency’s own regulations.  Therefore, the burden on Louisville to show that the NCAA has misapplied their own rules seems to be very high.  Advantage NCAA.

What About Tarkanian?

Jerry Tarkanian is the next name that comes up when people think about folks who have fought the NCAA and won.  While it is true that Tarkanian did file and settle a lawsuit against the NCAA, it is also true that he lost a lawsuit against the organization as well.  First, let’s look at the one Tark won…. err, settled.

In April of 1998, the NCAA and Jerry Tarkanian reached a settlement to resolve a lawsuit he had filed against the organization for what he referred to as harassment.  The lawsuit essentially stemmed from the NCAA’s seeming vendetta against Tarkanian dating back to when he was the coach at Long Beach State, and also a contributing columnist for a local newspaper.  Tarkanian wrote at the time that small schools seemingly always felt the brunt of the NCAA, but that larger schools were almost never punished.  For reference, Tark pointed out that “Western Kentucky got put on probation even though there were a lot more violations taking place at Kentucky.”  This drew the ire of the NCAA and from that point forward, according to the suit, Tarkanian was a marked man.

The other suit, which has more applicability to Louisville’s situation is that concerning an allegation of due process violations.  In short, Tarkanian argued that he had been penalized and forced into suspension by the NCAA without a hearing, without any evidence being presented against him, and without any recourse.  According to Tarkanian, this amounted to a breach in due process, which is guaranteed by the 14th amendment of the U.S. Constitution.  In a split decision (5-4) the U.S. Supreme Court ruled that the NCAA was not obligated to provide due process for Tarkanian, or anyone else for that matter.  Because the NCAA was not a state actor, the federal constitutional question was not appropriate for the courts to consider.

“What the hell does all of this mean you ask?”  Good question.  For starters, it essentially eliminates any due process question that Louisville could employ.  What the hell is a due process argument you may ask?  Well, as my college professor Tad Hughes once said; “when I say due process, you say fairness.”  When you hear due process, think fairness.  It’s really that simple.  Unfortunately, the courts have ruled that the NCAA doesn’t have to be fair.  No due process argument, no fairness complaint.  Advantage NCAA.

With respect to a lawsuit against the NCAA for some other sort of claim, say a breach of their by-laws, or an unsubstantiated taking of money in the way of fines, etc… state court does seem to be the best route to go with.  There would be long delays, written discovery and depositions would take place which would highlight all of the strengths, and weaknesses, of each side’s case, and ultimately there would be a trial in the matter.  Could Louisville prevail on such a trial, perhaps?  It is state action like this that worked for Tarkanian and for Penn State.  Most likely, the parties would reach some sort of settlement prior to a settlement occurring, but it would take a lengthy tour through the courts first and there is no guarantee of success.  While it would be a longshot at best, I would say that it would be Louisville’s best shot through the courts.  Advantage NCAA.

Alright Already, Enough of That, What Do You Think This Mean?

Again, quoting my favorite professor Hughes, “who gives a shit what I think?”  The only thing that ultimately matters is what a judge, or a jury, or a series of judges will think.  Look, I wish I could tell you that there was an easy path for Louisville to navigate its way around this mess.  I wish that there was some sort of clear-cut direction that would give us all as Louisville fans hope.  While I will stop short of telling you that there is no hope, I will reiterate my position from the outset.  I see this as a very steep uphill climb.  There will be very smart people operating on behalf of Louisville, and there will be determined and capable people operating on behalf of the NCAA.  Ultimately, I don’t like Louisville’s chances at prevailing with anything that most Louisville fans will see as meaningful.  (I see Pitino’s suspension getting moved to the first 5 games, and maybe the NCAA relents on some of the money they are seeking back.)  As for records, banners, legacies being restored, I see that as highly unlikely.  I pray I am wrong.   Perhaps we should look to the words of the late Jerry Tarkanian when evaluating chances of success against the NCAA; “I learned you never want to fight an organization that powerful. They control the press. They spend more money on public relations in one month than I make in a lifetime.”

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Keith Poynter

Keith Poynter graduated from the Louis D. Brandeis School of Law in May of 2011. While in law school, Keith studied Sports Law as well as other core curriculum. Prior to becoming an attorney, Keith worked in the insurance industry for 6 years, and was a police officer in both Kentucky and Tennessee for 6 years. As an avid sports fan, former basketball official and current youth sports coach, Keith is heavily involved in sports when not at work or with his family at the lake. Keith's diverse background makes him an excellent source for legal opinion about issues surrounding the sporting world. Whether the matter be criminal or contractual, Keith's unique experience and education allows him to offer insight that may be missed by the casual fan. Keith is available for commentary on any legal issues that may arise in the Kentuckiana area and will routinely post articles concerning local and national sports law topics.

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