USC Should Release Its 2010 Class

Submitted by psychomatt on

It is the only class thing to do. USC should release every kid who asks them to do so. USC can then re-pitch them and try to get them to re-sign with full knowlege of the recently announced NCAA penalties. The kids also could reopen discussions with any other teams they choose. Of course, we all know this is not going to happen because USC is not a class program. But it should.

So, what should Henderson and any other kid who wants out do? They should get together and tell USC that either USC does the above (at least with respect to them) or they are going to hire an attorney and sue USC for fraud. I guarantee USC's coaches and assistant coaches heavily downplayed the NCAA investigation and likely penalties. These kids relied on what USC told them. USC told them the violations were minor and the penalties would be a slap on the wrist. Since USC had received the NCAA's notice of alleged violations prior to signing day (and I highly doubt it shared that notice with these kids), USC induced the kids to sign their LOI's based on material misrepresentations of the facts. That is fraud, and a contract based on fraud is voidable by a court of law.

More importantly, I do not think USC would like to have a public fight and lawsuit with its highest ranking 2010 recruits. All of USC's files, records and emails would be accessible via the discovery process and all of USC's coaches and assistant coaches (including coaches who have recently left such as Pete Carroll) and all of the kids USC spoke with during the recruiting process about this issue could be deposed under oath. That would be an absolute nightmare scenario for USC. USC will release these kids from their LOI's if forced to under that type of pressure.

Note: I posted this once before, but it was buried in another thread and I am hoping that someone on this board will know one of USC's recruits and forward it. I do not. These guys are getting f%cked and someone needs to help them figure out how to make USC back down.

jg2112

June 24th, 2010 at 8:41 AM ^

You didn't answer the question.

Are you a lawyer?

Because if you are, you'd know why your lawsuit idea is absurd. And if you didn't, I'd seriously question your qualifications as an attorney.

BlockM

June 24th, 2010 at 9:07 AM ^

At what point did I claim to know anything about the laws in play here? All I said was that I assumed the trial could take a long time, and that I thought it would be pretty hard to prove that USC knowingly misled recruits as far as the sanctions were concerned. Are those assumptions incorrect? Is there a chance that IF USC decided not to allow the kids to be released that the whole thing would be over before this football season? Is it an open and shut case that they were misleading recruits?

Your whole premise was that if they threatened with a lawsuit, USC would back down. At no points did we get into the actual merits of the case. If you'd like to dive into that, maybe I'll change my mind.

psychomatt

June 24th, 2010 at 9:12 AM ^

Just look at your response here. It is riddled with legal assumptions. How long a case will take. How hard it will be to prove something. Fine, I accept you are not a lawyer. Maybe you should stop playing one on MGoBlog.

03 Blue 07

June 24th, 2010 at 10:29 AM ^

JG- Not to jump into this pissing match, but at least the concept of contract via material misrepresentation is voidable as fraud is a legally cogent concept/doctrine. Not to mention there isn't mutuality of remedy- the kid can't go play football somewhere else without sitting out a year. At some point, you'd think a case like this WILL get filed, but I'd surmise the judge would throw it out because judges grant broad discretion to governing bodies in sports, and I'd imagine they'd extend that to the NCAA, which governs sports and, ostensibly, academics. Also, the fact that they'd have a very, very difficult time proving damages if it were a lawsuit- the kid's "damages" (this hypothetical athlete) are...what? That he has to get an education at another University and can't play football for a year? I don't think there's any way a judge would allow the requisite expert opinion under Kotecki that could prove actual damages. Doing it in equity might be their best route- to get a declaratory judgment against the NCAA, but, like I said, judges are loathe to disturb governing bodies in sports. However, that is often because the argument is, "look, collective bargaining/unique bundle of rights- we're staying out if it. If you'd wanted this, your union would've bargained for it," while in this case, the kid could say, "I didn't bargain for shit! The SCHOOL is part of the NCAA," etc.

Now, the mechanics of such a suit would no doubt cost the kid the year of his life, for sure, even if they went the declaratory judgment/emergency injunction route. But still, I think that, at some point, a case like this might be filed, with the question basically being "what's a year of eligibility worth, and is that what you 'bargained' for when you signed the LOI."

And there are no doubt a million other factors I'm leaving out, but I'm in a hurry. Either way, I think this is at least an interesting argument/concept, and it's too bad it devolved into back-and-forth, etc.

jg2112

June 24th, 2010 at 10:33 AM ^

All fair points, and one other one that needs to be considered:

USC is appealing the decision, which means that if the appeal takes 20% as long as the investigation, these players WILL play in a bowl game after this season.

Yet another wrinkle.

03 Blue 07

June 24th, 2010 at 10:37 AM ^

And, obviously, any good lawyer would tell you, the first question you ask yourself is "what do I want to achieve? Is litigation really the right avenue?" In this situation, I'd say it isn't. Also, my points were based on a theory that USC didn't misrepresent the penalties because, as you've said, how the hell COULD they make a material misrepresentation of a clearly unknown act by a third party? It's not logically possible. My assumptions were based on if a.) someone, say, Kiffin, knew that the allegations were all true based on either having participated or having some other firsthand knowledge, and b.) completely lying about it. Obviously, this would be some sort of magical world of smoking gun emails and tape recordings.

jg2112

June 24th, 2010 at 9:10 AM ^

In most jurisdictions, as a plaintiff, you cannot set out a fraud claim as to someone else's opinion regarding future events.

Nothing USC said to their recruits regarding the NCAA penalties, which were not known as of Signing Day, can be the basis of a fraud claim.

That's just one of the many elements of a fraud claim no USC player could prove.

jg2112

June 24th, 2010 at 9:22 AM ^

There is a huge difference between the Notice of Allegations, and the official NCAA response which was handed down to USC in May.

While the Notice was known in February, the penalties were NOT known. If you're claiming the USC coaches fraudulently induced players to attend USC to their detriment, causing them damage, based on a Notice of Allegation that they defended for three days before a NCAA sub-committee, well, what tortfeasor vigorously defends themselves in that manner on the one hand, and acts in such bad faith on the other like you're alleging?And if you were going to claim damages of any kind, those damages would be based on the penalties, which were not known in February.

That's yet another problem area of this case - damages. No USC player would incur any compensable damages due to the fraud. What's the damages? You still get your scholarship to USC. You still get to play 12 football games. How is the loss of a bowl game "compensable"? You can't claim losing bowl games affects your draft status - I'd point at Brandon Graham and Zoltan Mesko and laugh in your general direction.

psychomatt

June 24th, 2010 at 9:32 AM ^

Each side has a different view of the facts and you battle it out in court. You appear to believe that USC disclosed all information relevant to these kids making their decision. And, apparently, that these kids have not incurred any damage. I disagree. More importantly, I am certain these kids disagree. If USC would like to have a public fight about this, these kids should take them up on that offer.

jg2112

June 24th, 2010 at 9:37 AM ^

You never answered my question of whether you are a licensed attorney, so I'm going to guess that you're not.

I'm not arguing the facts, I'm telling you general principles of law. The general principle of law is that opinions of future events are not actionable as fraud claims.

With that knowledge of the law, if you are a licensed attorney and try to bring this case into court, your case will get dismissed and you might get sanctioned by having to pay the attorney fees and costs of the other party.

Humor me - if these student-athletes go into court and file a lawsuit today, what damage have they incurred, TODAY, that a court could provide them relief for? If you cannot answer what they have suffered in damage TODAY, before they've even set foot on campus, then you might realize why they have no lawsuit.

psychomatt

June 24th, 2010 at 9:47 AM ^

I am a licensed attorney and a member of the New York and Illinois bars. And what you just wrote is a joke (and you know it). Suggesting that anyone would be sanctioned for bringing a fraud lawsuit in this case is pure misinformation intended to make you appear to people on this board that somehow you are more knowledgable. It would be funny if it weren't so sad.

jg2112

June 24th, 2010 at 9:54 AM ^

If you knew the law, and decided to ignore it, you know that sanctions would be a possibility. Of course, the issue of good faith comes into play.

Just as, if you were signing for a university with knowledge that a Notice of Allegations was pending, sanctions were a possibility.

03 Blue 07

June 24th, 2010 at 10:42 AM ^

Psychomatt: JG DOES have a point re: standing to sue and damages. There aren't any real, compensable damages at this point. The issue is not "ripe" yet. And he's also right about the "good faith" part of being sanctioned and hit for fees, but that's obviously rare and something lawyers wave at each other to scare each other...but it is possible under the law. But yeah, bringing this suit right now for actual damages wouldn't work, I don't think; you'd have to bring it in equity and try to get a court order releasing your kid from his LOI and allowing him to play somewhere else. The damages part...sheesh, good luck with that. I'm not saying the kid isn't "damaged," but compensable, provable damages under the rules of evidence? Tough road to hoe.

03 Blue 07

June 24th, 2010 at 11:35 AM ^

Well, then a suit in equity would be possible, perhaps. It would at least be entertained. No doubt USC would appeal it, and amicus briefs would be filed by other schools and the NCAA. I think, though, that the suit would have to try to void the entire LOI process, because otherwise, where would a court draw the line? If you, for instance, you had evidence- strong evidence- that USC made knowing, material misrepresentations of fact, then perhaps. But I think the issue, really, you'd be asking the court to decide is whether the entire LOI thing is legal at all. That's what it would blossom into. And I think that would be a healthy debate to have, because think about the kids who sign LOI's only to get them pulled? It doesn't seem equitable that a kid has to sign an LOI to reserve a potential scholarship, and then he has no guarantees of getting it. But at the same time, the other side is, "well, then don't sign it. You know the deal when you sign this- you know all of the issues, you aren't ignorant, etc., no one's forcing you to sign this letter of intent," etc.

I think you'd need an egregious test case probably- say, from Alabama. And even then, I am pretty sure the LOI's say that they aren't a guarantee of any scholarship or anything right on their face. The question is, then, well, what is the kid contracting for-- one year of free education? Or one year of free education and the OPPORTUNITY to play football, and only if the school then decides to keep the kid on schollie?"

I do agree that it is a shitty situation for the kids, honestly. They have to say, "I'm going to school X...if they'll have me, and if they won't, and they won't release me, I can't play football at another school," but the counter is, "yeah, but you can still get a free education at another school during that year you sit out, so what's the point?" I think it goes to the heart of what the kid is bargaining for in the contract. And, honestly, I think at some point, a suit like this WILL be brought, because the whole LOI system doesn't have mutuality of remedy and isn't even considered a binding contract except for the extent that the kid can play his sport. The school can drop the kid, he can get a free education somewhere else, but he can't play football/sports. The question would be, "what is the value of this 'playing football' part of the contract of adhesion that binds the kid but doesn't bind the school, and how does the fact that the kid doesn't have the same remedies at all that the school does play into this?" And the answer might be, "uhh, well, the kid is being offered a free education for...what- playing football? Being sweet? We have no mandate that says we have to give these things out," but that ignores the realities of big-time college athletics.

I hope there will be a test case on LOI's someday, and I'd imagine, if they stay the way they are, there will be. It's definitely nuanced and murky, in my opinion, and would be fascinating to watch play out in court.

NomadicBlue

June 24th, 2010 at 2:09 PM ^

has made me realize why I made the right decision when I chose engineering over law school. 

That's not a dig.  Just talking about my personal preference.  i'm glad there are people out ther in the world willing to have this debate. 

Now.  anyone want to debate the applicablility of Newton's Laws of motion vs. relativity?  Well, maybe in a different thread. 

03 Blue 07

June 24th, 2010 at 11:12 PM ^

I just popped back into this thread, and was like, "jesus h. christ, that is one skinny thread," so I figured I'd add to it to make it skinnier. And honestly, as a lawyer, I can tell you you might've made the right choice- so much b.s. involved with what we do. And physics was my favorite class in high school. Trade? Trade loans, too? No? fuck. back to the grind.

blueblueblue

June 24th, 2010 at 8:08 AM ^

Getting notice of violations doesn't mean USC can tell the future in terms of the extent of punishment. And if I remember correctly recruits knew of the notice of violations before national signing day. While USC may have played down the potential outcomes, I think everyone was surprised with what USC got. Every program would have played down the potential penalties (including our own), and USC can't be held liable for not being able to see an unprecedented future. USC was made an example of. These recruits are paying the price for future parity and stability. Blame USC, but also blame the NCAA for taking this drastic approach. 

mejunglechop

June 24th, 2010 at 8:43 AM ^

What do you mean "this drastic approach"? The school's compliance strategy summed up was to look away, and despite, DESPITE THAT a coach on the football team was still informed with first hand information that one of his players was receiving extra benefits and was thus ineligible, but did nothing. On top of that the basketball coach, not some booster, the actual fucking head coach paid a known runner to deliver a player compliance had told him to stop recruiting and USC was a repeat offender. What more do you want?

blueblueblue

June 24th, 2010 at 8:50 AM ^

I think I was unclear - I meant "drastic approach" in terms of how the punishment was unexpected, unprecedented - more in terms of the NCAA's coarse rather than fine-grained approach. If the NCAA had been doing their policing job all along, if they were more responsive, they would have doled out more and smaller penalties along the way to USC (and perhaps to other programs). That way programs can themselves respond and learn. Instead the NCAA hands out monstrous punishments to one program once every 5 or 10 years. I am not saying USC didn't deserve what they got, I am just saying that the unexpectedness is partly due to the NCAA's sparse yet powerful approach. 

mejunglechop

June 24th, 2010 at 9:03 AM ^

That isn't how enforcement works. The NCAA doesn't have a policing job insofar as it doesn't go looking for violations. It doesn't have the resources to. That's why each school has its own enforcement staff and is expected to self report violations. The NCAA only investigates if it is asked to or if there are outside reports of trouble.

Because the NCAA lacks subpoena power, when you get a school like USC that are utterly uninterested in self reporting a damn thing, and impervious to FOIA requests, it's very hard for the NCAA to investigate and prosecute.

blueblueblue

June 24th, 2010 at 9:37 AM ^

That isn't how enforcement works.

Thanks for stating the obvious. We would't be having this discussion if I wasn't pointing out a difference between how enforcement works now and how I think things would be different if enforcement worked differently. Great point. 

mejunglechop

June 24th, 2010 at 10:10 AM ^

You basically complained that the NCAA  wasn't vigilant enough in their "policing job" even though that would require either subpoena power or FOIA access, neither of which they had. You drew the conclusion that the NCAA had not done their job from false premises, hence me telling you that's not how enforcement works.

blueblueblue

June 24th, 2010 at 10:33 AM ^

Wow, if I thought I would have to defend and re-interpret every line I wrote I would have taken much more time and care with it. So I wrote

If the NCAA had been doing their policing job all along, if they were more responsive, they would have doled out more and smaller penalties along the way to USC (and perhaps to other programs). 

Yes, this was poorly worded - I meant that if the NCAA did their policing job differently, in a more ongoing, proximate, responsive, fine-grained way, then penalties wouldn't be so difficult to predict. They wouldn't be so unprecedented. I was saying that ideally their approach should be different from what it is now, not that USC didn't deserve their penalties, not that the NCAA has the resources to do their job in a different manner. My main point was that due to how the system is run now, the blame for the unpredictability of the penalties can't all lie with USC. Hence,

These recruits are paying the price for future parity and stability. Blame USC, but also blame the NCAA for taking this drastic approach. 

Now, do I need to choose another sentence to explain? Can I go back to work now?

mejunglechop

June 24th, 2010 at 10:51 AM ^

Forgive me for not interpreting "blame the NCAA" as "blame the strictures that confine the NCAAs powers."

More saliently, ignoring the women's tennis team, the only way this could have been more fine grained in its approach would have been if the Bush and Mayo incidents had been handled separately. The NCAA decided both cases were symptomatic of a similar underlying problem, so they bundled them. From there the extent of USC's punishment was only unpredictable insofar as no one knew how good their evidence was. If they could get the whole Bush thing to stick, it was very predictable that they were going to hammer USC and rightfully so.

BlockM

June 24th, 2010 at 8:14 AM ^

So they should pay to have lawyers attempt to prove beyond a reasonable doubt that the coaches doing the recruiting knew exactly what the punishment would be? Sounds like a long-shot to me.

"Hey, did you know it was going to be this bad?"

"Nope."

"This email you wrote says, 'This is going to be pretty bad.'"

"Well, yeah, I mean anything we got would be pretty bad. Punishment is never good."

"Oh. OK."

"We done?"

"Yeah, I guess so."

psychomatt

June 24th, 2010 at 8:24 AM ^

I am responding to you sincerely, because you seem to have incorrect informaton, not to attack you. The standard in criminal cases is "beyond a reasonable doubt". It is pretty stiff. The standard in civil cases is "preponderance of the evidence". That just means 50%+. It is a very different standard.

BlockM

June 24th, 2010 at 8:31 AM ^

My point still stands, though. Obviously everyone thinks they MIGHT have known something about how bad it might have been, but there's probably absolutely no evidence that specifically implies they actually did know.

They might have some small chance of winning that suit, but there's no way USC goes down without a fight. As evidenced by my lack of knowledge about the burden of proof, I'm just speculating, but couldn't a civil trial like this take an extremely long time to work itself out? If it took a year or two, the kids would be better served either just sticking with USC (They won't be a bad team. They'll just be a slightly smaller group of four and five stars that can't go to a bowl game for a couple years.) or losing the year and transferring to a different D1 school, IME.

psychomatt

June 24th, 2010 at 8:39 AM ^

First of all, USC does not want a fight. A fight with its top 2010 recruits is the last thing it needs right now. Second, this is not a one or two year issue for these recruits. They will not get to go to a bowl game for two years, but being down 10 scholarships for three years will have a major impact on USC. We have heard about Michigan's lack of depth for the past two years and how that has impacted our program. Being short 10 scholarships for the next 3 years will absolutely affect USC's depth if not more. These penalties will substantially damage USC for the entire 4-year eligibility of all of the 2010 recruits. And, if I am wrong, USC should have no problem releasing them and resigning them.

BlockM

June 24th, 2010 at 8:46 AM ^

Our lack of depth and USC's anticipated lack of depth are two completely different animals. We had (still have in some positions) a two-deep with freshmen and walk-ons. USC will still have a two-deep of four and five stars. I'm not saying it won't affect them, but I think we'll see less dropoff in terms of team strength than some expect. It's all debatable, and we won't know until we see how the next few years go.

Whatever the situation, I just don't see any of this happening. It sorta sucks for the kids, but it's not like they didn't know this was at least a possibility. And if they didn't know, that's partially their own fault.

psychomatt

June 24th, 2010 at 8:50 AM ^

Which is exactly why USC should do what I said -- release these kids and have them re-sign. If you are right and this is a minor bump in the road, nothing changes and no one is screwed. But if these kids look at it differently, they should be able to go somewhere else.