State of California defies NCAA; enacts law legalizing pay-for-play

A new law is set to take effect in California in 2023 that will allow college athletes to sign endorsement contracts and earn big bucks, just like professional athletes do.

This sounds like a good idea if (like me) you believe that anyone with a God-given talent should be allowed to earn whatever the market will bear in exchange for their notoriety.

The new law won't let colleges pay athletes. It only prohibits schools for disqualifying them if they accept money or other things of value from others. So like with most other initiatives taken by impatient politicos trying to rush what will ultimately happen anyway, someone is going to get hurt.

Beware the law of unintended consequences: The National Collegiate Athletics Association sets all the rules for intercollegiate competition played under its banner. In one breath, it can prohibit institutions from competing in big money NCAA-sanctioned events. Like ... football bowl games. And the NCAA Men's Basketball Tournament.

Stanford, Southern Cal and UCLA will be allowed to have players on their teams who have signed large contracts. But...

These schools will likely find themselves expelled from the league. The schools will be excluded from the rich revenue pools generated by NCAA TV contracts and postseason play in football and basketball.

Schools in their conference or region could be prohibited from playing them, fracturing conferences and spoiling rivalries.

The schools' non-revenue sports like women's gymnastics, men's golf and androgynous wrestling will see their only sources of funding dry up. Athletes across the board will suffer.

Since membership in the NCAA is voluntary, there is nothing the school can do except form their own league and petition ESPN for time on television.

Good luck.

The NCAA has seen enough of the 'eligibility crisis' in high-profile sports. It has begun relaxing some rules and going more leniently on revoking eligibility of student athletes found to have accepted monetary or other benefits because of their fame or athletic ability. Sooner or later, the ability of college athletes to capitalize on their skills will come to pass.

By trying to rush this, California (and South Carolina; maybe others) will probably hurt the players they're trying to help and do greater harm to athletes in other sports, too.

Blowing up the system the Cali way will do far more harm than good.

Research “Trilogy” shines light on O’Bannon case and NCAA amateurism model

Caution: You are about to enter the “No Spin Zone.” This is not exactly light reading, either. If you’re a compliance geek and you’ve been closely following the O’Bannon case, then you’ll find this interesting and informative.

If you’re not familiar with O’Bannon, here are the Cliffs:

Ed O’Bannon is a former UCLA basketball player who sued Electronic Arts and the NCAA over their use of his likeness in video games without compensating him. O’Bannon got former Alabama receiver Tyrone Prothro and others to join his lawsuit, and together they attempted to get their case certified as a class action lawsuit. O’Bannon has the potential to completely unravel the financial model of the NCAA as well as bring an end to their amateurism model as well. It is a case that’s closely followed by the media, the legal community and those who make a lot of money on college athletics.

Dr. Anastasios “Tassos” Kaburakis is a practicing attorney and Professor of Management & Sports Business for the John Cook School of Business at Saint Louis University. This blog as often relied on Tassos for expert guidance on NCAA compliance matters and the law. He’s conducted extensive research into the subjects at the heart of O’Bannon and his publications shed a lot of light on the background, foundation and potential consequences of the case.

Approximately nine years since a fateful meeting in a doctoral student’s office at Indiana University Bloomington, when the seeds were planted for this research stream, it is necessary and somewhat fulfilling to reminisce and reflect on the collaborative work that has taken place. I feel truly fortunate to have run into the research questions graduate students and I handled back then, and immensely grateful for the opportunity to serve conscientious and inquisitive young minds, while developing an empirical legal studies’ line of inquiry, which yields several useful contributions to both scholarship and practice.

Quite a bit has happened since those early days of the initial examination of NCAA student-athletes’ rights of publicity, the use of their likenesses in video games, and the various claims the three participants in that fall 2004 meeting and several coauthors in ensuing work forecasted. After some fundamental intellectual property theory and NCAA amateurism concepts’ analysis and presentations between the time of the initial meeting and the spring of 2009, in an eerie twist of fate, as the first paper from this stream was under review, the first case (Keller) was in fact filed, in May 2009. Weeks later the first part of our trilogy was published, and a few weeks subsequent to our first publication from this stream the O’Bannon complaint followed. Our research team continued working along this intellectual property and empirical legal research stream, and in the fall of 2011 we were happy to receive our second article’s acceptance.

Finally, almost four years since the commencement of the research investigation focusing on video-games’ consumer surveys and NCAA student-athletes likenesses, we have closure. This last paper marks the final part of our trilogy, encompassing the 2009 intellectual property theory piece, the 2012 student-athlete survey empirical article, and the latest manuscript featuring the consumer survey, published this spring. In the process there were a few interesting procedural lessons and insight gained (more analysis on academic research and third-party subpoenas, unretained experts, and scholars rights, will ensue in forthcoming scholarship).

Again, this isn’t light reading at all. But if you’re concerned over how O’Bannon could forever change college athletics, you should take some time to skim the findings. Generally speaking, Tassos believes that the NCAA may ultimately prevail, “if courts are convinced that a generic release signed annually by student-athletes encapsulates the underlying commercial use of their likenesses and identities at the heart of the pending litigation. If, on the other hand, courts hold that the particular use goes beyond what has been regulated by NCAA amateurism policy and embedded in student-athletes’ annual releases heretofore, then plaintiffs’ rights of publicity burden of proof will be partly met (i.e. they did not consent to such use).

This is the result of nine years of extensive research and includes the results of surveys administered to student-athletes and the video game consumer market, along with an extensive empirical legal analysis. I’m only part of the way through it all, but what I found most interesting were the differences between the two surveyed populations. Student-athletes think they should be compensated for the use of their likeness beyond their athletic scholarship, while consumers seem unaware that they aren’t.

Watching O’Bannon unfold will be interesting. More so after understanding the issues and underpinnings of the case.

Here’s the link to Tassos’ article again.

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Should the NCAA regulate how much Alabama spends on athletics?

There is an interesting, albeit unpersuasive opinion piece by Daniel Hare at businessofcollegesports.com arguing that college athletics spending is out of control and that some form of regulation needs to be imposed to stop the arms race between major college programs.

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Nearly a year ago, this article asked, how much is too much when it comes to spending on college football?  Assuming the answer is whatever they’re spending now, the next question is how to reform it.  I have a thought.  What if there was a cap on the amount of money universities could spend on college athletics?  Think about it.  University presidents and other observers are constantly decrying the “arms race” that exists today, yet nothing is done.  The reason: presidents know (or suspect) their counterparts are going to keep on spending and gaining a competitive advantage, and no president is going to risk crippling their athletic programs and alienating the alumni base.

But what if there was an NCAA rule which capped the amount of money you could spend each year?  Or perhaps a luxury tax imposed on those who spend over the cap?

A policy like this would allow presidents to put athletics spending on a more sustainable path, without the risk that competitors are going to exploit it and surge past their teams on the field.  It would help address the concerns faculty and other constituents have about spending at the expense of academics, including the public relations problem of increased athletic spending at a time of shrinking state appropriations and rising tuition for students.  Capping spending also means more schools would have the opportunity to compete for championships.  This is a big one.  Our country’s most popular sport by far, the NFL, has a hard salary cap to help provide all its teams with a realistic shot at taking home the trophy.  Even Major League Baseball, which doesn’t have a salary cap, has a luxury tax that teams must pay if they go over the spending threshold.

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This is a step on a slippery slope, and it only leads to a mucky, stinky mess on the bottom. Any time someone says they have a plan to make something “sustainable,” it should set off alarms in your head.

Free markets are never “unsustainable,” and anyone who tells you differently doesn’t understand even the most basic principles of capitalist economics.

The last thing in the world college athletics needs now is a new regulatory regime. The US is in an economic quagmire with an anemic economy, persistent high unemployment and an overall lack of growth. The only really strong “growth industry” is college athletics, which has resulted in a long term construction and hiring boom on every major college campus in the country. Why would anyone want to choke that off by arbitrarily imposing a limit on how much money can be freely given and spent to build top-notch facilities, hire the best coaches, assistants and administrators and fuel the local economies?

To make things more fair?

The author compares the budgets of the University of Texas and Lousiana-Monroe, and suggests that somehow, it’s unfair for ULM to have to compete with Texas for the same trophies.

No one expects mid-majors and directional schools to field programs that consistently play for national championships in revenue sports like football and basketball.

In the 2010-2011 academic year, the University of Alabama spent about $31.6 million on athletics. That included spending for facilities, salaries, travel expenses, security, equipment and other line items. Almost all of that went right back into local, state and regional economies, which generated income for thousands of people in Alabama. It helped to strengthen local tax revenues and helped the state keep from slashing appropriations for higher education even deeper than they’ve had to, and probably helped keep student tuition from climbing even faster than it has.

Back on the slippery slope metaphor—what exactly do you limit in spending? Is it salaries for coaches and administrators? Is it a cap on recruiting budgets? What about how much you can spend on state-of-the art training facilities, dining halls and academic centers?

As soon as you come up with a laundry list of things you want to cap, some enterprising athletic department will find another way to gain an advantage. That of course leads to even more regulations, more loopholes to exploit and more enterprising ways of getting the edge on the competition.  This won’t end well.

In the 1970’s, our enlightened federal government decided to fight inflation by instituting a regime of price and wage controls in a noble, yet fruitless effort to combat persistent inflation. That led to employers offering candidates a suite of fringe benefits, including health insurance. That led to removing the consumer’s budget constraints from pricing in the healthcare market, and now we have the most expensive healthcare market in the history of expensive healthcare markets.

In the 1970’s, 1980’s and 1990’s, that same enlightened government decided to force banks and S&L’s to lend money to homeowners with poor credit histories and demographics known by lenders to be high risk and then guaranteeing payment of principle and interest to investors. That of course led to the 2007-2008 financial meltdown that wrecked the economy and directly led to the economic malaise that we’re in now.

History shows that the more you try to regulate, the more damage you end up doing through the Law of Unintended Consequences. Don’t believe me? Well, have you seen the NCAA manual? Have you ever seen the Code of Federal Regulations? There ain’t a whole bunch of difference between the two, and both take a bunch of pointy headed bureaucrats to decipher and interpret them.

The best solution is to do nothing at all. Let the bigger institutions raise and spend what they want. Let the smaller institutions do what they can to keep up. Eventually, the most enterprising and richest schools will break off from the current NCAA membership and form their own system. History also shows that in free market systems, those who invest and take risk are rewarded. College sports is a business, and the best solution to a business problem is always a free market.

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Federal law violated in UConn NCAA case

Remember when we heard the news that the NCAA had violated its own procedures when conducting the Nevin Shapiro case at Miami? Remember how I noted that it was nowhere near the first time the NCAA circumvented policy or law to get the goods?

Well.  Whaddya know.

By discussing Nate Miles' foot surgery and payment details, officials at the Tampa Bay Bone and Joint Center violated the Health Insurance Portability and Accountability Act of 1996 (HIPAA), according to the attorneys. The NCAA deemed that Miles' foot surgery in 2008 was an extra benefit paid for by Josh Nochimson, a former UConn student manager and booster who ultimately became an agent. In its public infractions report dated February 2011, the NCAA infractions committee referred to contact being made with “the doctor who performed the procedure on [Miles].”

That orthopedic surgeon, Chris MacLaren, is mentioned in the infractions report along with Joseph McCandrew, an administrator at the center. MacLaren's attorney told CBSSports.com that no HIPAA violations occurred.

The Tampa Bay Bone and Joint Center did not respond to a request for comment.

While NCAA investigators apparently did not violate federal law, they were able to extract information to assist in the case that led to major penalties against UConn and former coach Jim Calhoun.

While some might breathe a sigh of relief that there’s no apparent federal liability on the part of the NCAA, the real takeaway here is that, once again, investigators have thrown ethics in the trash in trying to get the goods on a school they have in their sights.

Enticing individuals to violate federal privacy law is as bad or worse than paying an attorney to depose a witness under oath. In both cases, investigators ignored protocol and circumvented legal advice from their own legal staff.

While the CBS report linked above doesn’t state that investigators ignored legal counsel in the UConn case, does anyone actually believe that the investigators didn’t know that what they were asking the physicians to share constituted a violation of HIPAA, and does anyone actually believe that NCAA legal counsel either could have or should have warned them not to do it?

The whole investigative process is a sham. They pick and choose who they want to go after, they extract information by any means necessary and make stuff up when they can’t connect all of the dots. Then they arbitrarily hand down penalties that make no sense at all and attempt to justify it all by saying “every case is different.”

Who cares who paid for a kid’s reconstructive surgery? How does have a booster or a staff member pick up the tab affect the kid’s amateur status?

It’s a sham.

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Nick Saban would recruit one-and-done players

It should come as no surprise that Alabama football coach Nick Saban and Kentucky men’s basketball coach John Calipari are friends and enjoy mutual respect and admiration. Each has reached the top of his profession while thumbing their noses at the national cognoscenti in the mainstream sports media. Both recognize that the lifeblood of their program’s success is the ability to recruit the best athletes available and mold their talents into an unstoppable dreadnought.

It should also come as no surprise that neither man particularly likes the rules he’s forced to work under. In many cases, the voluminous NCAA Handbook contains by-laws specifically crafted to thwart an advantage that men like Saban and Calipari have obtained through their own ingenuity. Given a set of rules, the two championship coaches developed their strategies and tactics to sign the best recruits. Competitors complained and the rules were changed, only to see the smartest coaches adapt their methods and stay ahead anyway.

So it should come as no surprise that if the NFL changed its policies to mirror those of the NBA and created an environment where the only impediment to entering the draft was the date stamped on a birth certificate, Saban would adapt and continue to recruit the absolute best players he could find without regard to whether they plan to stay for two, three or four years in his program.

Saban would recognize the dilemma he faces.

"I don't like the rules," he would say. "I want Trent Richardson to come back and be my running back next year. It's what I really want. There are only two solutions to the problem. Either I can recruit players who are not as good as the players I'm recruiting, or I can try to convince guys that should leave to stay for me."

Saban recognizes that most of the players he recruits have NFL aspirations. The first time he convinces a player like Trent Richardson—or Mark Ingram before him—to delay the start of his NFL career to play one more year at Alabama will be the last time. The next Trent Richardson would sign with the coach that represents the quickest path to a first round draft pick and Saban’s reign as college football’s best coach would be over. He’s too smart for that, and so is John Calipari.

It was Calipari who said almost the same thing when asked about his recruiting just prior to the Wildcats playing with their Kansas Jayhawks victims and devouring them in the NCAA championship game Monday night. 

Calipari didn’t make the rules he operates under and he doesn’t like them. Saban doesn’t like the rules he operates under either, but if the rules changed and Saban had to adapt again, he would. If the NFL changed its rules such that Saban could win his fourth championship overall and third at Alabama by recruiting players he’d never see again after hoisting the crystal ball, he’d do it in a heartbeat.

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James Elliott, “Mr. 5:00 AM,” awaits NCAA decision on hardship waiver

The Mobile Press-Register’s Tommy Hicks has a great feature article on South Alabama offensive lineman James Elliott in Wednesday morning’s print edition. Elliot is a one-time Kentucky Wildcat who transferred to Joey Jones’ Jaguars to be closer to his mother Pamela, who is suffering from non-alcohol liver failure.

Elliott lives with his mother in Pensacola, Florida and rises each morning at 3:00 am, makes the drive to the West Mobile South Alabama campus and is there when athletic trainer Jinni Frisbey arrives at 5:00 am to open the USA fieldhouse.

Frisbey calls Elliot “Mr. 5:00 am.”

Elliott has applied to the NCAA for a hardship waiver which will allow the 6-2, 300 lb lineman to play immediately for the Jaguars and not be forced to sit out a year. A decision by the league is expected to come sometime before the 2012 season begins.

But if there was ever a textbook case for granting a hardship waiver, Elliott is it.

Most 17 to 22 year olds have a hard time getting out of bed before 9:00 am. By the time they’re up and coherent, Elliott has already worked out at the fieldhouse, made a 6:30 am spring practice and has already made it to his first class of the day.

Sometimes as late as 9:00 pm, Elliott makes the drive back to Pensacola, where his real work begins—caring for his mother.

As Elliott puts it, “There’s nothing [the doctors] can really do now. They’re just trying to create a stress-free environment for her, which is hard for her running her business back in Pensacola. They have her on a very strict diet. It’s pretty much trying to keep everything as calm as can be at this point.”

On his prospects of playing for the Jags in 2012:

“I’ll play wherever they put me. I just want to help the team as much as I can. … If [the waiver] doesn’t happen, it wasn’t meant to be. I’m just glad to be at South Alabama. If it works out, great. If not, I’ll still be right here… I wouldn’t change a thing.”

This kind of dedication—to his mother and to his team—is what should make this a slam dunk case for the NCAA. If they really are all about the student-athlete, this is one whose waiver application should be granted—immediately.

Elliott doesn’t need the distraction of wondering whether he sits or plays in 2012, especially after all of the work he’s already put in after transferring just a few months ago. Pamela doesn’t need the stress of wondering whether her son’s hard work and dedication go for naught.

Character should count for something and Elliott’s character couldn’t be displayed any better.

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North Carolina gets NCAA sanctions, promptly blames the SEC

By: @LivingCrimson

After the debacle of UNC coaches working as insiders for agents, academic fraud, and players taking gift-ola and free trips to sunny destinations, the NCAA sanctioned North Carolina this week. Surprise, surprise. Included in the punishment is a one year postseason ban, reduced scholarships for three years and brand new zeroes in the win columns for 2008 and 2009.

So, of course, guilty-as-sin defensive back Duenta Williams ran to the nearest reporter with a laptop and spilled the remorse beans? Not quite. College Football Talk has some pithy quotes from Williams in essence saying the Tar Heels are angelic children preyed upon by money-grubbers -- enabled by the S-E-C.

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“What happened at Carolina is child’s play compared to what happens at the SEC,” ex-UNC defensive back Duenta Williams, who was suspended four games in 2010 for his role in the scandal, told the Charlotte Observer. “The SEC pays for players. I’m not afraid to say it, but the NCAA doesn’t go after them.”

“It’s a broken system,” said Williams of the NCAA and the game of college football. “College football is a business, and the people who run college football are only interested in money and using the players as product to make money.”

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Hmm, nothing about the players at UNC embracing every handout they could find. But then personal accountability is so passé these days.

By the way, according to Rivals North Carolina native Williams was officially recruited by only two SEC schools: South Carolina and Tennessee. He was recognized by scouting services as one of the five best "skill" athletes in the nation coming out of high school. If the SEC was really doing what Williams claims, why didn’t one of its schools snap him up with their nefarious ability to pay players? It’s not like he would have found a conscience and turned down the money.

Williams was first team All-ACC and remains undrafted in the NFL.

More Bama updates on Twitter at @LivingCrimson.

Group seeks to grant NCAA the power to regulate coaches’ salaries and other costs of college sports

The Coalition on Intercollegiate Athletics, an alliance of faculty senates from Football Bowl Subdivision  schools, has called for action that would grant the NCAA broad powers to “restrain the market forces” driving the rapid growth in the business of college sports.

The group met in January and earlier this week, released a set of five “policy recommendations” aimed at reining in what they essentially see as a breakaway invasion of their turf.

The most controversial recommendation—granting the NCAA the same type of exemption from antitrust litigation enjoyed by labor unions and professional sports.

From the Associated Press:

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"Without modification of antitrust constraints, there is no mechanism to restrain the market forces driving rapid commercial expansion," the steering committee wrote.

Its four other recommendations were:

—To support the so-called "collegiate model" of sports and try to lessen the commercialism that has led to calls that athletes should be paid to play.

—To advocate for policies that will keep big football conferences inside the NCAA, which would allow for some oversight that would be missing if they splintered away.

—To increase efforts to respond to the "reputational risks" that the market-driven model of sports pose to U.S. higher education. This issue came to light, unflinchingly, in the child sex abuse scandal at Penn State, which had its reputation sullied because of problems originating in the football program.

—To continue cooperating with the NCAA in trying to bring about changes, while remaining vigilant about NCAA efforts that place college sports over the academic missions of the schools themselves.

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Restraining free markets, lessening commercial influences, restricting the abilities of football schools to operate their programs in their own best interests and essentially conducting a propaganda campaign against “big football” should sound familiar.

Why, these are all wonderful reasons for Congress to act and grant the NCAA bureaucrats virtual autonomy in regulating the business of college sports, aren’t they? Show me one instance of institutionally imposed wage and price controls that has not resulted in complete failure.

Such action would result in:

• Coaching salary caps
• Recruiting budget caps
• Restrictions on the fundraising abilities of athletic departments
• Restrictions on the abilities of colleges and universities to protect trademarks
• Regulations on facilities expenditure
• Reallocation of resources from “haves” to “have nots”
• Restrictions on market-driven conference realignments
• Restrictions on the ability of universities to leave the NCAA and form their own organization
• The end of college sports as we’ve known it for the last two generations

The chief threat of the COIA proposal is the invitation of Congress to act as the architects of a completely new system of regulating college sports. Fortunately, every time this notion floats to the surface, it is blasted out of the water by the college presidents who, despite their roles as administrators of higher education, understand economic reality. COIA may understand it well, but never let good business sense get in the way of ideologically driven agendas:

"While the NCAA is demonstrating significant ability to regulate in the interests of higher education in the area of academic reform, it is prevented by antitrust laws from doing so in the area of economic regulation, and it has been amply demonstrated that schools are not able to do so themselves."

Member schools are the NCAA. Indianapolis has only the powers granted by the member schools. Whether you believe the current college sports model is sustainable or not, this system of governance must be maintained. The membership will determine how much regulation of college sports is enough. The membership will determine how much more or less regulatory power will be granted to the governing body, and any member school that is dissatisfied with the degree of regulation is free to disassociate with that body and form its own system of governance and regulation.

It’s not perfect, but freedom of association and and free enterprise are the best systems in the world. Nothing good has ever come from regulating either.

Note: Ten of the 14 current and future Southeastern Conference schools have faculty senates that are members of the COIA. They are Alabama, Arkansas, Auburn, Georgia, Ole Miss, Mississippi State, Missouri, South Carolina, Tennessee and Vanderbilt.

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UK’s Calipari predicts demise of NCAA athletics oversight

In a wide-ranging, deep interview with SportingNews’ Mike DeCourcey, Kentucky men’s basketball coach John Calipari covers a lot of ground. But the coach who has had two former teams’ appearances in the NCAA Final Four vacated due to rules violations saved his boldest prediction for the league that stripped him of those honors.

Calipari thinks the “big boys” of college athletics—the major conferences and their member schools—will soon get fed up with the bureaucracy of the NCAA and break away from the league. He also scoffs at the notion that the NCAA has the student-athlete’s best interests in mind, a statement that is sure to raise some ire in Indianapolis.

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SN: Something people use against you a lot are the vacated Final Fours. One thing we wondered, how do the players who were on those teams feel about that designation?

CALIPARI: I wouldn’t be surprised if the Memphis kids come back and sue the NCAA. Those guys are saying, “We earned those wins. ... None of us knew anything about anything, Coach. That’s wrong. Why are they punishing me and the number of wins I had?” Like, Antonio Anderson and Robert Dozier had the most wins of anyone over a four-year period, but they take away 38.

They’re not going to be around long. The NCAA will not. Before I retire from coaching, they will no longer oversee college athletics. They will, but it won’t be the four power conferences—they’ll be on their own. And the main thing is, do you really care about these kids? They’ll get mad that I say it. The NCAA Tournament, for example. It’s more about the selection committee getting on TV, everybody getting their tickets on the aisle, down low, all the parties they go to, the traveling. But we don’t take the parents of the participants. But they take their kids and their families.

The officials will get better hotels than some of their teams. And I know it for a fact. The decisions they make on the $2,000 (expense allowance for student-athletes)—it should have been $4,000. It’s a stipend. It’s not salary. It’s not “pay-for-play.” It’s a stipend. It’s expenses. And then schools vote against it. All this stuff piles up to where people are going to say, “Enough’s enough.”

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The environment described by Calipari is a primary reason why the coaches, administrators and commissioners of the power conferences want absolutely nothing to do with a major college football playoff run by the NCAA.

They are presently outsourcing their postseason to the bowls, allowing the bowl executives to enjoy all of the perks Calipari says the NCAA officials get from March Madness. Once the powers-that-be get their arms around the situation and figure out a way to in-source the football postseason, the NCAA will no longer be needed and the bowls’ power over the postseason will be greatly diminished.

At that point, those powers-that-be will start to wonder: what’s the point of remaining in the behemoth NCAA? They can create their own playoff system, negotiate with bowls to provide consolation prizes for programs that don’t make the cut and accept competitive bids from venues seeking to host playoff games.

League President Mark Emmert has to see the handwriting on the wall, too. Otherwise, he wouldn’t be spending so much energy and making the rubber chicken circuit trying to convince people that he’s trying to reform the way the NCAA conducts business.

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Ole Miss player under NCAA scrutiny

During it’s ongoing peacekeeping mission in Mississippi’s Billboard War, the NCAA may have found a member of the Ole Miss faction in violation of its amateurism rules.

That’s right—Ole Miss is under NCAA scrutiny for potential rules violation. Ole Miss.

A story in the Clarion-Ledger this morning reports that officials are investigating whether a birthday party this month for freshman wide receiver/cornerback Nickolas “Snoop” Brassell violated league rules.

Snoop, aka “DA CHAMP,” celebrated his birthday on January 6 at the Locker Room Sports Bar & Grill. The party was promoted on a flier, using a photo of Brassell.

The flier made rounds on the internet and also became Brassell's Facebook profile picture. It also mentions a $10 cover charge for the party.

The incident was first reported on January 2 by the Clarion-Ledger.

When all the dust settles, this will likely be a secondary violation with no permanent impacts on Brassell’s eligibility, but anecdotally it appears that these things are popping with increasing regularity.

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Proposed new NCAA enforcement model would HAMMER violators

The worst violators of recruiting and amateurism rules will suffer greatly if a proposed overhaul of the NCAA enforcement model is adopted by the league’s membership. Bryan Fischer of CBSSports.com breaks it down and explains that USC would have been given an even harsher sentence for the Bush/Mayo case under the new program.

Gone would be the highly subjective, case-by-case evaluation by the Committee on Infractions. Gone too apparently will be the wide latitude of discretion employed by that body as the new model seeks to streamline cases and moves them through the process more rapidly.

Currently, enforcement classifies violations as either major or secondary infractions. In order to provide greater flexibility, the new model would include four, including most egregious, serious, secondary and minor.
"The working group recognizes the wide-spread perception that the current penalty model leads to inconsistent and insufficient penalties and does not adequately deter other institutions and individuals from engaging in conduct contrary to the rules," the working group's report stated. "The working group believes that the severity of the penalty imposed must correspond with the significance of the rule violation(s)."

Remember the clamor for a system that imposes mandatory minimum penalties for serious rules violations, consistency between the time vs. crime ratio and elimination of Committee discretion? That’s all on the table here, as once the infractions are categorized the new model proposes an array of consistent penalties.

In some of the worst cases—like the Bush and Mayo case at USC—the penalties could potentially cripple a sports program for years.

Fischer:

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So how does it really work? Well, take the infamous USC case involving Reggie Bush and O.J. Mayo among others: violations of NCAA bylaws governing amateurism; failure to report knowledge of violations; unethical conduct; violations of coaching staff limitations; impermissible recruiting contacts by a representative of the institution's athletics interests; impermissible inducements and extra benefits; and lack of institutional control. 

According to the new model, this would be classified as multiple Level I violations with four significant aggravating factors. Here's a comparison of penalties with what the Trojans got and what they would have received under the new model:

So yes, USC would have been punished even worse under the new proposed enforcement model coming from the NCAA. That's interesting because athletic director Pat Haden is on the enforcement working group and has made it a point to say that the Trojans were unfairly punished.

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Under the new model, USC would be given 2-3 (or more) years in post-season bans, a fine ranging from 1.5% to 2.0% of the program budget, a 37% to 50% reduction in scholarships, similar reductions in recruiting activity and a five year show cause order on the assistant coach who facilitated the wrongdoing.

There are fates worth that the death penalty for the most egregious of NCAA rules violators. It’s hard to imagine anything harsher than watching your program get scheduled by Southern Miss as a homecoming opponent for the next decade.

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HE MAD: Ohio State has-been calls for investigation of Alabama

Former Ohio State coach John Cooper—who posted a 2-13 record against SEC schools during his coaching career—called for an NCAA investigation into Alabama during a radio talk show interview yesterday.

Cooper has not coached a down of football since Bill Clinton was President, the Oklahoma Sooners won what was supposed to be the first of many BCS Championships and the Baja Men Let the Dogs Out. But he thinks Ohio State was robbed by the Committee on Infractions over the TattooGate scandal and thinks the real cheaters are in the SEC.

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Speaking with Cleveland sports radio station 92.3 The Fan, Cooper, who was head coach for the Buckeyes from 1988 until 2000, was asked about recently fired coach Jim Tressel and his NCAA violations. Cooper explained that Ohio State's violations seemed minor in comparison to those committed recently by Southeastern Conference schools.

"I see some of these teams, the Auburns. I'm told, I don't know and I haven't coached in that league, but I'm told that down south the Alabamas and LSUs and some of these teams that have these great players, that maybe the NCAA needs to look into their situation," Cooper said. "Those teams have been on probation. As you know, Alabama's certainly one of the most penalized teams in college football, as is the Southeastern Conference. We say the SEC's the best and they are the best, but they've also had more NCAA violations than probably all the other leagues put together the last 10 years."

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For the record:

Since the NCAA began enforcement actions in the 1950’s, Ohio State University football has been sanctioned three times for major infractions resulting in scholarship reductions. The University of Alabama football program has also been sanctioned three times resulting in scholarship reductions. For all sports and including those major infractions cases where no scholarship penalties were imposed, Ohio State has been hit by the Committee on Infractions five times. Alabama has been hit five times.

In fact, Alabama is not even on the Top 10 list of the “most corrupt” list of college athletics programs.

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Fuzzy Math: What’s wrong with this USAToday headline?

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The screen shot clip above comes from a story in USA Today, which you can read in full right here. If you don’t read this carefully, you’ll come away with the impression that bowl games just aren’t as big of a draw as they used to be. After all, per-game average bowl attendance might fall to its lowest level since legendary Alabama football coach Paul “Bear” Bryant prowled and growled on the sidelines of the Superdome during the 1979 Sugar Bowl, en route to claiming Alabama’s 10th National Championship.

You might think people are losing interest in bowls and just don’t care to make the holiday trips to see their teams in the annual post-season tradition that is such a part of the sport. You might think the 99% are rising up in righteous revolt against the BCS and occupying couch seats instead of stadium seats. You might think that the BCS anarchists are finally making headway and the revolution is at hand!

You’d be wrong, and you’d be falling victim to the BCS anarchists’ evil plot to topple the BCS and impose chaos on college football’s postseason. Ok, I exaggerate (a little) to make a point. The point is that when you’re pursuing an agenda, using a little trickeration with the arithmetic is ok, as long as nobody catches you.

Opening paragraph:

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Tuesday night's Sugar Bowl was the 30th of this season's 35 games, each of which also was played last season. The total attendance for those games is more than 2.5% lower this season than it was last season. If this trend holds for the remaining five games, the average bowl attendance for the season would fall to 50,542. That would be the lowest since 1978-79, when the number of games expanded to 15 from 13 and the average was 48,404.

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See the sleight of hand? Total bowl attendance is down year-over-year from 2010-11 to 2011-12. But average bowl attendance is at its lowest level in three decades because… Well, because people don’t care about bowls anymore, right?

In the 1978-79 bowl season, there were 15 bowl games with an average attendance of 48,404.

15 x 48,404 = 726,060

In the 2011-12 bowl season, there have been 35 bowl games with an average attendance of 50,452.

35 x 50,452 = 1,765,820

There are only two groups of people who think you’re so bad at math, you’ll buy the line that bowl attendance is the worst it’s been in decades: Democrats in Congress and BCS Anarchists in the media.

Exit question: Which group does Tim Brando belong to?

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Oklahoma State likely facing NCAA major infractions investigation

In a FOX Sports exclusive, Senior College Football writer Thayer Evans details a troubling situation in the Oklahoma State Cowboys’ football program, in which a man is alleged to have provided improper benefits to current and former football players and refuses to cooperate with the schools’ internal compliance investigation.

From Evans’ report, it appears that the school has done everything in its power to get answers from Gannon Mendez  in its probe of his relationship with the football team. The school has reported minor violations in connection with the investigation including a $5 cocktail and the sales of gaming consoles the players received as gifts from the 2010 Alamo Bowl.

While these are ticky-tack secondary violations that will result in no loss of player eligibility and no sanctions for the school, the NCAA will almost certainly want to explore the depth of access Mendez has had with the football program.

Likely paths for the impending investigation include determination of Mendez’ status as a “booster” according to the NCAA’s definition of that term and whether the school adequately monitored its program to prevent someone like Mendez from providing the types of benefits detailed in Evans’ story.

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NCAA Regulations
The University is responsible for insuring that its various constituencies (e.g., University staff and faculty, coaches, student-athletes, alumni and friends) abide by NCAA rules and regulations. Under NCAA rules, all alumni, friends and employees of the University are categorized as "representatives of the University's athletics interests."

Representatives of a University's Athletics Interests - Who is a representative of the University’s athletics interests (i.e., a "booster")?
NCAA Bylaw 13.02.11 defines the term "booster." In part, the rule states: 
"A booster (i.e., representative of the institution's athletics interests) is an individual, independent agency, corporate entity (e.g. apparel or equipment manufacturer) or other organization who is known (or who should have known) by a member of the institution's executive or athletics administration to:

• Have participated in or to be a member of an agency or organization promoting the institution's intercollegiate athletics program;
• Have made financial contributions to the athletics department or to an athletics booster organization of that institution;
• Be assisting or to have been requested (by the athletics department staff) to assist in the recruitment of prospects;
• Be assisting or to have assisted in providing benefits to enrolled student-athletes or their families; or
• Have been involved otherwise in promoting the institution's athletics program.

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Evans’ report indicates that while Mendez has apparently enjoyed an alarming degree of access to players in the ‘Pokes’ program, he is not a season ticket holder, nor has he made any financial contributions. However, this doesn’t rule out Mendez being defined as a booster, since he allegedly has engaged in “assisting or to have assisted in providing benefits” to the student-athletes. If he is defined as a booster, then the school is responsible for knowing about his activities and interaction with the program and preventing him from jeopardizing player eligibility by providing improper benefits.

The booster determination leads to the other path the investigation can be expected to take—determination of whether the school has “failed to monitor” or has demonstrated a “lack of institutional control” over its athletics program.

In addition to Mendez, NCAA enforcement would also likely explore other individuals with “insider” access to the program to determine if Mendez is an isolated “rogue booster” or if there are others committing similar or perhaps even worse impermissible benefits violations.

Most recently, the NCAA Committee on Infractions concluded that Ohio State University failed to monitor its football program in allowing numerous players to receive cash and other impermissible benefits. The decision came roughly one year after reports of the violations surfaced. Coach Jim Tressel later admitted that he had known of the violations months before the story became public and concealed the information. Tressel was fired and the program was saddled with a loss of nine scholarships over three years and a one-year post-season ban.

It is far too early to determine what penalties Oklahoma State might face if there are any violations discovered beyond what’s already known. But Mendez’ refusal to cooperate will certainly pique the NCAA’s interest and this story could play out along timeline similar to that of the Ohio State case.

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Oklahoma’s Bob Stoops yanking scholarships

ESPN’s Jake Trotter reports today that Oklahoma Sooners coach Bob Stoops is either encouraging some of his 2011 squad to transfer, or has told them that he is not renewing their scholarships for 2012.

Some members of the team—in Arizona preparing for tomorrow’s Insight Bowl vs Iowa—have described it as a “weeding out” process and some of the comments from Stoops to Trotter would cause the media equivalent of a media meltdown if a big time SEC program were slashing scholarships.

Stoops hasn’t “named names” and would not address any specific players involved, but some of the current players opened up and talked about the impact the move is having on them personally and the team as a whole.

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"It has affected us drastically in my eyes," sophomore linebacker Corey Nelson confessed Wednesday. "Just losing so many good players, so many good players that had so much potential. It made a lot of guys question whether they should stay here or not from here on out. It also just brought a lot of confusion to the players, trying to understand why these players were leaving, what was the main reason as to why they're leaving.

"It has affected us all. I think it's still affecting us today. But we're just trying to put it behind us, since we have the game this week. But it still affects us."

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Asked about the situation, here are the comments attributed to Stoops by Trotter, via Trotter’s Twitter feed:

Stoops’ move and the comments he made this week highlight a problem many see as central to reform of the NCAA and its oversight of how schools manage athletics programs. Following President Mark Emmert’s “Presidential Retreat” last summer, Emmert and a hand-picked committee proposed legislation that would allow schools to offer multi-year scholarships rather than the one-year renewable grants-in-aid in place since 1973.

 The membership has since rejected the proposal, sending it and another measure allowing schools to award a $2,000 cost of attendance stipend back to the board for reconsideration.

While allowing schools the ability to award multi-year scholarships sounds like a good idea, most such “good ideas” usually run afoul of the Law of Unintended Consequences. In Oklahoma’s situation, Stoops would have to find some way of jettisoning the players he regards as dead weight on the team. The comment in the second tweet would probably be enough—if you’re skipping class or not showing up for practice—you don’t get a free ride at a Division I school, right? But then there would be an appeals process. And there might even be lawsuits, like the ones filed for former Rice player Joseph Agnew.

The NCAA’s approach to the “problem” of one-year scholarships is akin to using a sledgehammer to reattach a piece of crown molding. You might get the job done but you’re just as likely to cause an uglier problem than the one you had before.

The issue isn’t that student-athletes are unprotected without multi-year scholarships. The issue is the arbitrary nature with which some coaches remove players from their roster under the one-year deals. None of Stoops’ decisions in the weeks since the regular season ended appear to be arbitrary. There appear to be violations of team rules regarding practice attendance and class work.

There isn’t a successful coach in college football who would arbitrarily cut good football players from his team. Suggesting that they might do so to make room for an incoming, untried prospect is lunacy. You don’t leave fish to find fish, and you don’t jettison good players for what might be another. Those are the coaches with scruples and successful résumés.

There are some less scrupulous coaches who might arbitrarily make such decisions, and those are the coaches that student-athletes could use some extra protection from when signing with and playing for them. A legislative proposal removing some of the discretion from the coaches—perhaps through a review board at the conference or NCAA level—would solve the majority of the arbitrariness issues while also avoiding what Boise State called the “recruiting disaster” of multi-year scholarships and bidding wars between schools.

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South Carolina’s Jadeveon “Doo Doo” Clowney in apparent NCAA violation

Throw the Flag is showing that University of South Carolina’s freshman defensive standout Jadeveon Clowney is likely running afoul of NCAA by-laws prohibiting the use of a student-athlete’s likeness to promote a business or for-profit enterprise. Here’s a flyer for a Christmas-season birthday party hosted by the Gamecocks’ own Cee Cee Whitlock & JaDeveon “Doo Doo” Clowney.”

The NCAA by-laws apparently being violated here:

The rules in question are 12.5.2.1 and 12.5.2.2, respectively:

12.5.2.1 Advertisements and Promotions After Becoming a Student-Athlete. After becoming a student-athlete, an individual shall not be eligible for participation in intercollegiate athletics if the individual:
(a) Accepts any remuneration for or permits the use of his or her name or picture to advertise, recommend or promote directly the sale or use of a commercial product or service of any kind; or
(b) Receives remuneration for endorsing a commercial product or service through the individual’s use of such product or service.

12.5.2.2 Use of a Student-Athlete’s Name or Picture Without Knowledge or Permission. If a student-athlete’s name or picture appears on commercial items (e.g., T-shirts, sweatshirts, serving trays, playing cards, posters) or is used to promote a commercial product sold by an individual or agency without the student-athlete’s knowledge or permission, the student-athlete (or the institution acting on behalf of the student-athlete) is required to take steps to stop such an activity in order to retain his or her eligibility for intercollegiate athletics. Such steps are not required in cases in which a student-athlete’s photograph is sold by an individual or agency (e.g., private photographer, news agency) for private use.

Statements obtained by IBCR from the NCAA indicate that while this may be a technical violation of rules implemented to prevent businesses from exploiting student-athletes’ athletics reputation, there is rarely an eligibility consequence if the student-athlete doesn’t know or permit the activity and he or the school take steps to end it. “There would be no eligibility consequences for the student-athlete as long as they did not have any knowledge and the school issues a cease and desist notice,” NCAA spokeswoman Stacy Osburn told IBCR last August, in connection with the T-Town Menswear non-story.

IBCR has also reviewed summaries for nearly two dozen cases similar to the Clowney (and TTMW) story. The case summaries were provided as a courtesy by Dr. Anastasios Kaburakis, Assistant Professor of Management and Sports Business in the John Cook School of Business at
Saint Louis University.

Not one of them produced permanent losses of eligibility or major infractions cases against the schools involved.

Nevertheless, Throw the Flag’s find is significant in that South Carolina recently admitted to a series of major infractions in connection with an improper benefits case involving lodging and other violations, and is considered a repeat violator under NCAA by-laws.

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Ohio State Buckeyes fans to learn NCAA fate today

We thought this was coming a week or so ago.

It’s finally official—the public will Ohio State University will learn whether the NCAA Committee on Infractions thinks the sacrificial lamb offered by school officials is enough to satisfy the bloodlust of the media.

Late yesterday, Athletic director Gene Smith confirmed that the NCAA would hand down its sentence in a 3:00 pm EST press conference today.

School officials have already been apprised of the sanctions and know what’s coming.

The news comes almost one year after the school held a press conference to announce that it was suspending five football players for receiving improper benefits—including free tattoos and other goodies—from a tattoo parlor owner about to face indictment for drug dealing.

The scandal cost coach Jim Tressel his job. The school self-imposed penalties including two years probation, vacation of all wins from the 2010 season and five scholarship reductions over three years. The public reaction to the school’s offer was swift and indignant.

Officials later learned that they would be charged with failure to monitor—one of the three most dreaded infractions in the NCAA enforcement code—in a rare issuance of a second Notice of Allegations from the enforcement staff. The NCAA almost never issues multiple Notices of Inquiry or Notices of Allegations. It likes all enforcement packages completely wrapped up and placed beneath the tree with a neat and tidy bow.

It will be interesting to see how the league rules today. Regardless of the outcome, expect a fury of stories from all sides, complaining either that the penalties are too light, too harsh, or just right.

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Auburn contact with prized recruit could rise to standard of major violation, experts say (UPDATED)

SCROLL DOWN FOR UPDATE

Yesterday, IBCR reported that Auburn University likely violated its agreement with the Southeastern Conference and NCAA regarding the school’s report and self-imposed sanctions after the 2010 Tiger Prowl affair.

As explained yesterday, Auburn released reams of documents regarding multiple secondary violations discovered over the last two years, including violations revealed during an investigation into the Tiger Prowl visits the football program used as a recruiting tool in Spring 2010.

The documents show that Auburn agreed to self-impose a 60 day restriction on staff contacts—both on- and off-campus—with prized Hueytown Quarterback Jameis Winston. The restriction was to begin the first week of November 2011 and run through January 2012. Both the SEC and the NCAA agreed to deal and the matter was dropped from further consideration.

However, as also reported here yesterday, the prospective student-athlete told recruiting analysts that Auburn coaching staff visited him in his home Sunday night, in apparent violation of the terms of that agreement:

Ms. McKeeman confirmed to us via email that Winston was her source for the report and that the report was accurate.

This would appear to violate the terms of the agreement reached between the school, the SEC, and the NCAA, and NCAA compliance experts believe that this could rise to the standard of a major violation, but that the SEC may seek to mitigate any potential penalties as a result.

“The standard of a major violation is nebulous—it is basically all other violations not secondary,” says Dr. David Ridpath, NCAA compliance expert and professor of Sports Administration at Ohio University. “A couple caveats are—was there a competitive advantage gained and was there intent to break the agreement, or was there a reckless disregard for the rules.”

“This could be considered major, but it is often in the eye of the beholder. If this visit took place—there appears to be intent to violate and a disregard for the rules. If this kid signs with Auburn—then there would be a competitive advantage. That does not mean it would automatically be a major violation because the NCAA is very inconsistent on application plus you can never underestimate the influence of the SEC in the mitigation of violations,” said Ridpath.

The SEC has so far declined comment. The NCAA has yet to return messages seeking comment and clarification. Auburn University cannot comment because the coaching staff cannot publicly discuss the prospective student-athletes it is pursuing.

“The best option for Auburn is to simply back off of Winston’s recruitment altogether and plead ignorance of the terms of the agreement in a report of a secondary violation,” said a college recruiting and compliance analyst. “If he never signs a letter of intent and never reaches the campus, it’s not that big of a deal, really. But if the school signs the prospect and it’s shown that they broke an agreement not to make contact with him, that would be a thumb in the eye of the NCAA. It sure wouldn’t go down well in Indianapolis.”

UPDATE: al.com’s Evan Woodbery has a published report in which the Antonor Winston acknowledges that Auburn coaches Gus Malzahn, Curtis Looper and Trooper Taylor visited the family Sunday night.

This confirms Laura McKeeman’s report Monday afternoon and reported here later that night.

Woodbery’s story also acknowledges the existence of self-imposed restrictions that limited the Auburn staff’s contact with Winston through January of 2012.

What remains unclear is what—if anything—has changed since November 4, when the school released the documents in response to media open records requests.

What is clear? At the time of the initial violation in 2010, Winston was a high school junior. NCAA rules state that the Auburn staff was prohibited from having off-campus contact until November of his senior year—2011. This is the reason why the self-imposed penalties for the staff’s contact with Winston are different from the dates of the other penalties described in the report.

If those restrictions haven’t been lifted, then the coaches’ visit last Sunday would represent a violation of a standing agreement. 

There’s nothing to be gained by pushing this story any further. The key information is now in the news stream and nothing sanitizes better than sunshine. Further, Auburn officials are at a disadvantage over this story because by rule they cannot publicly discuss recruits or recruiting activities.

We’ll continue to follow developments but at least for the time being, we’re calling this one CONFIRMED.

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US Senate schedules first hearing in wake of Penn State scandal

The Associated Press is reporting that the US Senate has scheduled a congressional hearing in the wake of Penn State child sex abuse scandal:

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WASHINGTON -- The Senate has scheduled the first congressional hearing in the wake of the Penn State child abuse scandal.

Three senators announced Monday that a Dec. 13 hearing will examine how well the nation is protecting children from abuse and neglect.

Pennsylvania Sen. Bob Casey requested the hearing by a panel of the Health, Education, Labor and Pensions Committee. Maryland Sen. Barbara Mikulski says she hopes it will shed light on prevention and deterrence of child sexual abuse.

 

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Two things of note, here. The first is that the hearing called by the Senate isn't specific to the Penn State case. That is, it's not likely that the same details from the state grand jury indictment and ensuing media coverage will be trotted out all over again. At least not to the detail we've seen crawling over our screens during the weekend's sporting events.

The second is that while this hearing isn't directly connected to the Penn State case, the hearing will almost certainly include officials from the school. 

Last of all, the hearing comes just three days before Penn State is to deliver its answers to the questions posed by NCAA President Mark Emmert in a letter last week. That letter informed the school president that the league was launching its own investigation into potential abuses of NCAA principles covering ethics and institutional control. And, the FBI appears poised to make a federal criminal case out of the allegations surrounding child abuse and an alleged coverup at the school.

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NCAA abandons policy and precedent with letter to Penn State

NCAA investigations into the actions of member schools have always followed the same path. But in an unprecedented scandal, league President Mark Emmert decided that unprecedented steps need to be taken.

Long-standing NCAA policy dictates the procedure. Credible allegations are received and reviewed. Information is collected. A Notice of Inquiry is transmitted from the VP of Enforcement to the school president. The NCAA staff conducts its investigation and if it finds violations of applicable by-laws, transmits a Notice of Allegations. The school appears before the Committee on Infractions and later hears what penance it must suffer as a result of its transgressions.

In the Penn State case, policy and procedure are gone. In his three-page letter to interim President Rodney Erickson, Emmert sternly warns the school that the league’s bedrock principles of ethical conduct, honesty, dignity are at stake as a result of potential inaction surrounding the Jerry Sandusky child abuse scandal.

The Emmert letter is unprecedented on two different levels. First is the fact that the letter informing Penn State of the pending probe comes from the NCAA president himself. In the modern era of NCAA investigations, never before has the president of the league written such a missive as this.  The official communication from the NCAA notifying a member school of a pending investigation has always come from the Vice President for Enforcement, the office currently held by Julie Roe Lach.

Also unprecedented is the fact that the NCAA has publicized the letter and publicly announced that it plans to launch an investigation. Having the letter originate from the office of the President is a big deal. Publicizing the matter is even bigger. The NCAA has vigorously guarded information regarding even the existence of investigations, steadfastly refusing to even acknowledge investigations that everyone knows are in progress.

So why make this one public? Emmert has said in interviews that this matter is not a traditional “enforcement” investigation and that ordinary rules aren’t in play here. He’s said that since the league doesn’t plan to send investigators to campus to interview coaches, officials or players, the policy governing enforcement procedure don’t fit in this case. But Emmert nonetheless cited specific by-laws that may have been violated, and violations of those by-laws in previous cases have brought harsh sanctions at the end of enforcement investigations.

There’s no doubt that the Sandusky scandal at Penn State is the worst, most-sickening stain on college athletics. Nothing even comes close. In an unprecedented case, Emmert is taking unprecedented steps. Some may cynically call it a PR ploy; accusing the league of trying to show that it is out in front of the story. There might be a mote of truth to that, but it’s much more likely that Emmert is finally getting the NCAA to do the right thing in the right way. If that means abandoning policy and breaking precedent, then so be it, says he.

But beware the law of unintended consequences. Abandoning precedent invites charges of arbitrary and capricious action, and provide the only good reason for judicial intervention.

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