NOA response from KU discussion
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@HighEliteMajor I was intrigued by your comment indicating the possibility of the NCAA using some testimony from the federal trial but disavowing other testimony that may undermine its case against KU.
The reason I am intrigued is that I think that if the NCAA does this, they will indeed hand a federal lawsuit to KU on a silver platter. The NCAA may govern its owm members by its own rules and procedures. I have discussed for what seems like years how the courts will defer to private adjudicatory processes that are directed to voluntary members of an organization (which you also have discussed). So long as an organization follows its own rules (which must include notice, the right to be heard, and some type of appeal) courts keep their hands off. Churches, lodges, etc all administer their proceedings largely unfettered. It is also really what underlies the general legislative and common law deference to arbitrations.
There is one exception, however, that the NCAA could easily stumble into. First, a general observation: let’s remember that the use by the NCAA of evidence from federal criminal trials has never been tested anywhere. In virtually all penalty types of proceedings, using testimony from a third party against the subject of the proceeding is usually allowed only when the subject of the proceeding had a chance to cross-examine or otherwise participate (whether they availed themselves of it or not). It is entirely likely in my mind that a court faced with the notion of use of outside testimony against a party that had no ability to participate in that proceeding would consider this as a case of first impression potentially impacting hundreds–thousands, including D2 and D3–of schools. The huge importance of ensuring that the NCAA’s rules passed a fundamental test of private adudicatory due process would absolutely, in my mind, guarantee a willingness by a court to take the case.
But secondarily, this case itself would beg for review if the NCAA chose to use their rules by cherry picking which evidence from a court case to use. It is axiomatic that the NCAA developed the rule to get to things it otherwise would miss since it has no subpoena power. I think courts could easily say that there is nothing more arbitrary than excising disfavorable evidence while trumpeting the favorable. Courts, even if willing to let the NCAA use this novel power after considering that first challenge discussed above, might (I think “would”) decide that the NCAA can only use evidence that is specifically and conclusively established as a finding in the prior case. Evidence that is extraneous to a guilty finding should not be used because it may well not have been the result of a judicial or jury finding.
Example: Agent is on trial for providing drugs to get Student A to sign a representation contract in high school. Student A testifies that he and Agent invited classmate Student B to dinner and did drugs later. Agent is found guilty. NCAA wants to impose initial eligibility sanction on Student B for accepting value (meal and drugs) from Agent, and tries to introduce Student A’s testimony to prove it.
I think a court would say it violates fundamental fairness to allow the use of extraneous evidence like that. A judge or jury could have found Agent guilty while disbelieving that Student B was involved.
Anyway, if the NCAA tries to disregard the testimony that KU did not know of the payments, I think the door is wide open.
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@HighEliteMajor I think I’ve got the TLDR version (I actually read most of it… great job outlining your perspective):
Justice isn’t fair. To think that the allegations are about fairness is wrong. This is about holding a member accountable, which the NCAA is well-equipped to do.
Is that basically the idea?
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@FarmerJayhawk said in NOA response from KU discussion:
If colleges make the bad choice to bring athletes on campus but tell other students to stay home it’ll send exactly the wrong message about “amateurism.”
There’s several ways to look at this. Before I get to that though, I want to say that is coming from the lense that the NCAA doesn’t give two
about college football because they don’t profit off of college football. ESPN owns the playoffs and the conferences negotiate their own TV deals. The NCAA will be singing a different time this fall when it’s time for college basketball to start up since that’s where the vast majority of the NCAA’s operating finances come from and they’re going to be desperate in not wanting to miss out on a second straight NCAA Tournament because I’m sure their pocketbook took a huge hit this year and why they tried so hard to find a viable alternative so they could still get their TV money.First of all, the NCAA moving towards the adoption of allowing players to make money off of themselves is a huge step forward for college athletics. That statement @BShark linked to is also significant because it’s another step away from the charade that college athletics is amateur in nature, at least in regards to football and men’s basketball. If that’s the position the NCAA, conferences, and schools want to take, then I have no problem with players coming back before students because nobody is pretending they are student-athletes anymore. They’re being viewed and treated like athletic-students in that case and should have a different set of rules applied to them in that case.
The other side is if those groups want to keep up the charade that these kids are true students first, then I would agree with keeping them away from campuses until everyone else returns as well. If you want to bring in the football players in the summer like normal because of plans to reopen the campus in August/September to students, I wouldn’t have an issue in that case either because that’s standard for programs to get their kids conditioned and ready for the season.
Ideally before the end of the month, you would have the NCAA talk to conference commissioners about their support of the rule change in regards to players profiting off their likeness which basically says these kids are more than just student-athletes now. Then the conference commissioners get on conference call with all of the AD’s and university presidents to to establish how student-atheltes are viewed in their eyes based on the NCAA’s endorsement of players profiting off their image and come to a decision about how the school’s themselves view these athletes in that light.
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@mayjay I don’t think the NCAA would ignore some evidence but rely upon other evidence. I hope I didn’t say that. I think they assess all of it. They considered KU’s voluminous response.
First, I believe the NCAA is the fact-finder (and other fact-finders in other proceedings are irrelevant to their mission). Thus they can take all the “evidence” and make their conclusion. That is, violation or not. For example, judges/juries take in all sorts of evidence. Then they make credibility determinations to make a finding. The NCAA can do that. That means they can give more weight to certain evidence. In fact, they are empowered to make exactly that sort of finding. I mentioned this a long time ago it seems – when has a school beaten the NCAA in court over it’s penalties?
Second, and I think this is really important – whether or not Self knew of specifics is somewhat irrelevant when treating Adidas as a booster. That is, because of the booster status, the school is held accountable. We relied upon them to help in recruiting. They were our agent, so to speak. When we placed our reliance on Adidas to get us “a couple of real guys” or whatever, we’re in bed with them.
I did not intend to suggest that the NCAA would ignore (or dismiss out of hand) some evidence in favor of only reviewing other evidence. But given that my post was of the TLDR variety (as @bskeet mentioned), I might have forgotten what the heck I said by the time I got done. I don’t think that conclusions … rulings by a judge or a jury, or theories by a prosecutor … are conclusive for the NCAA. Meaning, I think they can ignore that stuff.
@bskeet And thanks … and I would say generally, yes.
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@Texas-Hawk-10 said in NOA response from KU discussion:
@FarmerJayhawk said in NOA response from KU discussion:
If colleges make the bad choice to bring athletes on campus but tell other students to stay home it’ll send exactly the wrong message about “amateurism.”
There’s several ways to look at this. Before I get to that though, I want to say that is coming from the lense that the NCAA doesn’t give two
about college football because they don’t profit off of college football. ESPN owns the playoffs and the conferences negotiate their own TV deals. The NCAA will be singing a different time this fall when it’s time for college basketball to start up since that’s where the vast majority of the NCAA’s operating finances come from and they’re going to be desperate in not wanting to miss out on a second straight NCAA Tournament because I’m sure their pocketbook took a huge hit this year and why they tried so hard to find a viable alternative so they could still get their TV money.First of all, the NCAA moving towards the adoption of allowing players to make money off of themselves is a huge step forward for college athletics. That statement @BShark linked to is also significant because it’s another step away from the charade that college athletics is amateur in nature, at least in regards to football and men’s basketball. If that’s the position the NCAA, conferences, and schools want to take, then I have no problem with players coming back before students because nobody is pretending they are student-athletes anymore. They’re being viewed and treated like athletic-students in that case and should have a different set of rules applied to them in that case.
The other side is if those groups want to keep up the charade that these kids are true students first, then I would agree with keeping them away from campuses until everyone else returns as well. If you want to bring in the football players in the summer like normal because of plans to reopen the campus in August/September to students, I wouldn’t have an issue in that case either because that’s standard for programs to get their kids conditioned and ready for the season.
Ideally before the end of the month, you would have the NCAA talk to conference commissioners about their support of the rule change in regards to players profiting off their likeness which basically says these kids are more than just student-athletes now. Then the conference commissioners get on conference call with all of the AD’s and university presidents to to establish how student-atheltes are viewed in their eyes based on the NCAA’s endorsement of players profiting off their image and come to a decision about how the school’s themselves view these athletes in that light.
If they can profit from playing and have access to tests and the like then I don’t have a problem with it assuming they follow state and local guidelines. But under the scenario where we don’t have students back on campus, NIL is still more an idea than reality, and schools want to play football, I think that’s rank hypocrisy. I don’t think it’ll happen thankfully. I do believe students will be on campuses in the fall with significant modifications to schedules. I have no idea what’ll happen with football beyond I think they play at some point. I could see a delayed season without fans but I don’t think there’s much of a chance they’ll cancel the season
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@HighEliteMajor Wow, sorry, maybe I should not read things and then respond later. I cannot figure out where I got waylaid… Covid-isolation-induced senility, perhaps.
So just consider that post my own thoughts about whether we can sue. (I agree scorched earth is not a good approach. I do think we win on procedures, but the time and expense will be costly.)
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@Texas-Hawk-10 I could be wrong about this but I think the NCAA handles all the branding of college athletics. So the NCAA gets royalties from football related sports items that have a university logo so they probably care deeply about college football.
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I think the NCAA has gotten away with murder for decades. They prosecuted schools based on rumor or circumstantial evidence. They rarely had the ability to really nail schools because they didn’t have the power to subpoena or indict. So they often hammered schools with impunity. Back in the day, they were never threatened with retaliation in a federal courtroom. Much has changed because of the establishment of widespread harm throughout the country. It has become easier to pierce that private institution veil.
HEM - “when has a school beaten the NCAA in court over it’s penalties?”
Good question. Has any school taken their grievance on sanctions to a federal courtroom? Look over the last few years and you will find other areas that have new precedence challenging the authority of the NCAA. Why isn’t the timing now GOOD for a challenge?
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@Careful-you said in NOA response from KU discussion:
@Texas-Hawk-10 I could be wrong about this but I think the NCAA handles all the branding of college athletics. So the NCAA gets royalties from football related sports items that have a university logo so they probably care deeply about college football.
No they don’t because the NCAA isn’t a marketing company. Schools handle they own branding through their own marketing departments within the athletic department.
The NCAA also has no control over the licensing and trademarks of schools either. That is a private company called Collegiate Licensing Company (CLC) based out of Atlanta that schools and conferences outsource their licensing and trademark stuff to. That’s the company that’s gets a piece of pie when licensed merchandise is sold.
ESPN controls the College Football Playoff so they’re the one who make a boatload of money from that. Various groups control the individual bowl games so the NCAA doesn’t get any of that pie. Conferences the TV deals for the conferences which is why the conferences want college football so badly. The NCAA doesn’t get any piece of the pie of college football.
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@FarmerJayhawk said in NOA response from KU discussion:
@Texas-Hawk-10 said in NOA response from KU discussion:
@FarmerJayhawk said in NOA response from KU discussion:
If colleges make the bad choice to bring athletes on campus but tell other students to stay home it’ll send exactly the wrong message about “amateurism.”
There’s several ways to look at this. Before I get to that though, I want to say that is coming from the lense that the NCAA doesn’t give two
about college football because they don’t profit off of college football. ESPN owns the playoffs and the conferences negotiate their own TV deals. The NCAA will be singing a different time this fall when it’s time for college basketball to start up since that’s where the vast majority of the NCAA’s operating finances come from and they’re going to be desperate in not wanting to miss out on a second straight NCAA Tournament because I’m sure their pocketbook took a huge hit this year and why they tried so hard to find a viable alternative so they could still get their TV money.First of all, the NCAA moving towards the adoption of allowing players to make money off of themselves is a huge step forward for college athletics. That statement @BShark linked to is also significant because it’s another step away from the charade that college athletics is amateur in nature, at least in regards to football and men’s basketball. If that’s the position the NCAA, conferences, and schools want to take, then I have no problem with players coming back before students because nobody is pretending they are student-athletes anymore. They’re being viewed and treated like athletic-students in that case and should have a different set of rules applied to them in that case.
The other side is if those groups want to keep up the charade that these kids are true students first, then I would agree with keeping them away from campuses until everyone else returns as well. If you want to bring in the football players in the summer like normal because of plans to reopen the campus in August/September to students, I wouldn’t have an issue in that case either because that’s standard for programs to get their kids conditioned and ready for the season.
Ideally before the end of the month, you would have the NCAA talk to conference commissioners about their support of the rule change in regards to players profiting off their likeness which basically says these kids are more than just student-athletes now. Then the conference commissioners get on conference call with all of the AD’s and university presidents to to establish how student-atheltes are viewed in their eyes based on the NCAA’s endorsement of players profiting off their image and come to a decision about how the school’s themselves view these athletes in that light.
If they can profit from playing and have access to tests and the like then I don’t have a problem with it assuming they follow state and local guidelines. But under the scenario where we don’t have students back on campus, NIL is still more an idea than reality, and schools want to play football, I think that’s rank hypocrisy. I don’t think it’ll happen thankfully. I do believe students will be on campuses in the fall with significant modifications to schedules. I have no idea what’ll happen with football beyond I think they play at some point. I could see a delayed season without fans but I don’t think there’s much of a chance they’ll cancel the season
Like I said, it all depends on how schools and athletic departments truly view football players. Honestly, I think whatever we see with the NFL in regards to delaying the season is probably the way college goes as well.
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@FarmerJayhawk said in NOA response from KU discussion:
If colleges make the bad choice to bring athletes on campus but tell other students to stay home it’ll send exactly the wrong message about “amateurism.”
That will totally destroy all of their myths.
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@drgnslayr I understand the desire to sue the NCAA. They are a rules enforcer. No one likes them.
But let’s focus our anger at the ones that are to blame. The colleges. They run the NCAA. Own it. Direct it. Fund it (or under fund it). The colleges make the rules.
The colleges approved the language about boosters. A first year law student could have advised regarding the breadth of that rule.
This is their monster. In part, it is KU’s monster.
Again, I appreciate your passion and the desire for fairness.
It sounds like you’ll get your wish as some have said KU is in this until the bitter end. We will all root for a KU victory if that happens, and if that happened, a celebration on Mass might be fitting. Not holding my breath, though.
@mayjay And I was only kind of kidding about forgetting what I’d typed by the time I get to the end of a long post. That senility is spreading.
I truly think our best, realistic option is one that @Texas-Hawk-10 mentioned (and was the basis of my “burn it down” suggested threat many months ago) – that the NCAA sees that to hammer Kansas would be to create such a wide net among its top programs that it would not make sense business wise.
I just don’t like that the NCAA (it seems) is cornered by our aggressiveness. I would rather more solutions be available.
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@HighEliteMajor said in NOA response from KU discussion:
That senility is spreading.
No vaccine for debilitas senilitas.
(The best thing about taking Latin for 4 years was the help it provided in standardized tests like the LSAT. The second best thing was making up cool words.)
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I know I’m not an unbiased source here. I openly admit that. If this forum was for official purposes my response would be buffered and I would attempt to be less opinionated. This is a place to “let it fly!”
What I want is fairness. And that simple comment opens a monster can of worms. I want fairness to schools, fans, coaches and most, the student-athletes. You are right, that we are a part of this and the development there of. I attack the NCAA often in areas I feel are unfair. It’s hard not to do after reading info about Zion and others and what appears to be an unfair approach to evaluating fairness on a broad scale.
It is important to see “how we got here.” And use that as part of the reasoning for where we go next. This is a transformation away from something that started simple but grew into complexity and required constant patching. It’s like a bad piece of software where the approach was to patch and patch and patch. At some point, it’s time to start from scratch and build something new. We are at that point.
The NCAA “using” situations to posture their position is an idea widely believed. And to those fans from schools selected, it always feels unfair. It builds an environment of distrust, anger and a desire to rebel. That’s not a system working well.
Maybe it’s about the punishment. Is it fair to hurt so many people that are totally not involved in the “crime?” Punishing a university (in it’s entirety) with bans from post-conference participation, reducing scholarships, public condemnation and humiliation, etc., hurts a lot more innocent people than those committing the crime. When a school is leveled with the dark cloud of conviction, that impacts pretty much all areas of the university, including a huge impact to academics. Think about the impact on endowments (for example). Connecting the dots between NCAA sanctions and the development of a new research wing to the university is just one of the many areas that need to be considered and screams for this to reach a federal courtroom, because our society is heavily impacted by the decisions made by this private organization.
Imagine someone commits murder in your city/town. The person is caught. Should the entire community be punished for that? In some ways, the harm has already been leveled in many areas… but should there be a bigger penalty applied to community as a whole? No. Punishment should be directed to those who commit the crime. And in some cases, there can be fault in the system, too, and that should be exposed and addressed, too.
Punishment should be directed specifically to those who are convicted. And because of that specificity of punishment the level of proof must meet a reasonable standard. Perhaps the NCAA needs to be in contract directly with coaches, ADs, etc., to create the ability to regulate with pinpoint accuracy by laying down the law. This is where the college system may be better served by federal control, because those contracts are not necessary.
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I don’t think that there is going to be any college sports this year anyway - football, basketball, any. You cannot say there will be no classes on campus, yet say yes to having sports, no way.
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@mayjay said in NOA response from KU discussion:
@HighEliteMajor I was intrigued by your comment indicating the possibility of the NCAA using some testimony from the federal trial but disavowing other testimony that may undermine its case against KU.
The reason I am intrigued is that I think that if the NCAA does this, they will indeed hand a federal lawsuit to KU on a silver platter. The NCAA may govern its owm members by its own rules and procedures. I have discussed for what seems like years how the courts will defer to private adjudicatory processes that are directed to voluntary members of an organization (which you also have discussed). So long as an organization follows its own rules (which must include notice, the right to be heard, and some type of appeal) courts keep their hands off. Churches, lodges, etc all administer their proceedings largely unfettered. It is also really what underlies the general legislative and common law deference to arbitrations.
There is one exception, however, that the NCAA could easily stumble into. First, a general observation: let’s remember that the use by the NCAA of evidence from federal criminal trials has never been tested anywhere. In virtually all penalty types of proceedings, using testimony from a third party against the subject of the proceeding is usually allowed only when the subject of the proceeding had a chance to cross-examine or otherwise participate (whether they availed themselves of it or not). It is entirely likely in my mind that a court faced with the notion of use of outside testimony against a party that had no ability to participate in that proceeding would consider this as a case of first impression potentially impacting hundreds–thousands, including D2 and D3–of schools. The huge importance of ensuring that the NCAA’s rules passed a fundamental test of private adudicatory due process would absolutely, in my mind, guarantee a willingness by a court to take the case.
But secondarily, this case itself would beg for review if the NCAA chose to use their rules by cherry picking which evidence from a court case to use. It is axiomatic that the NCAA developed the rule to get to things it otherwise would miss since it has no subpoena power. I think courts could easily say that there is nothing more arbitrary than excising disfavorable evidence while trumpeting the favorable. Courts, even if willing to let the NCAA use this novel power after considering that first challenge discussed above, might (I think “would”) decide that the NCAA can only use evidence that is specifically and conclusively established as a finding in the prior case. Evidence that is extraneous to a guilty finding should not be used because it may well not have been the result of a judicial or jury finding.
Example: Agent is on trial for providing drugs to get Student A to sign a representation contract in high school. Student A testifies that he and Agent invited classmate Student B to dinner and did drugs later. Agent is found guilty. NCAA wants to impose initial eligibility sanction on Student B for accepting value (meal and drugs) from Agent, and tries to introduce Student A’s testimony to prove it.
I think a court would say it violates fundamental fairness to allow the use of extraneous evidence like that. A judge or jury could have found Agent guilty while disbelieving that Student B was involved.
Anyway, if the NCAA tries to disregard the testimony that KU did not know of the payments, I think the door is wide open.
And there it is, neatly rolled into a tortilla, thank you @mayjay. People are tired of the NCAA’s dictatorial ways, being able to pick and choose.
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It will be interesting to see if there is benefit for KU dragging this out as long as they can. Duke is now in the news. Louisville was last week getting their NOA. Arizona and LSU have to be next. Something like 16% of P5/P6 schools have been charged with violations. Is the NCAA really prepared to hand out punishments to that many schools. The Duke/Zion Allegations could be game changers in this.
Let’s not forget Gassnola’s dealings weren’t mutually exclusive to KU. He’s tied to the NC St & potential Arizona situation as well.
Another interesting part. The NCAA violated its own by laws using evidence in the FBI trial against KU in its NOA. If the case is still pending appeal when KU goes before IARP or a federal court I wonder what grounds KU has because of that.
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I can’t remember all the particulars of KU in the FBI trial and what was actually admitted as evidence and what was hearsay that a reporter printed, but didn’t actually make it into the trial. However, KU seems to be one of the few schools that didn’t have any coaches actually paying the players. Wasn’t one of Arizona’s assistants paying players out of his own pocket?
I think it’s a good thing Preston’s Mom is on wire tap saying that KU couldn’t find and Gassnola under oath said Self/KU didn’t know. The innuendo about KU coaches on wire taps, who knows? We didn’t have the full context of what was being said and even some of the things typed, Self didn’t respond. All the NCAA may really have to go on is that KU should have known. But if you take Bray’s comments, communications with shoe reps is common place (no surprise). It’ll be interesting what comes out on Zion, where his parents were living, etc. If any of those details come out, KU won’t look so bad. I’d love to be a fly on the wall in knowing KU’s strategy because as bad as it looks (and as bad as the penalties may be), I think KU has a chance to come out of this okay.
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Yes “Book” Richardson is the Assistant your talking about.
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@hawkfan01 don’t they have her on tape telling billy not to tell coach about the car? I think she tried to say her and Gassnola were Lovers, and she’s gay.
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@Marco A realistic question - if folks are tired of the NCAA’s “dictatorial” ways, why do the colleges allow it? I understand the sentiment. We all hate the NCAA I guess. But the schools don’t. The schools make the rules. The schools could upend all of their authority.
To everyone on this topic - The facts aren’t in our favor. All the nit-picking about who knew what, or told someone, or whatever, is irrelevant. Here’s why - the NCAA, with all of that, already leveled its opinion by sending us the NOA. Then, after our Response, they came back with their Reply and said our violations were “severe and egregious.” The NCAA knows these facts and with that, they doubled-down and did not moderate.
@hawkfan01 I don’t think Bray’s comment does anything for KU. The issue for Bray would be if their shoeco paid athletes to go to ND. Then they’d be in the same hot water IF the NCAA had that info. Correct? If details on Zion come out, I think we’ll still look bad … but Duke may look just as bad. And, of course, that is good.
@BeddieKU23 I’m interested in the rule section you’re referring to on using trial or third party evidence. Do you have a reference to that?
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@HighEliteMajor The “severe and egregious” part is most likely referencing Gassnola and Adidas and their booster status and why this will eventually end up in court if the NCAA does drop the hammer on KU. We cannot ignore the circumstances of why KU declared Gassnola and Adidas as boosters which was because the NCAA asked them to do so in order to move forward in Silvio’s reinstatement case. That is relevant in KU’s fight against this.
I’m guessing KU will be challenging that by accusing the NCAA of coercion in regards to forcing KU to name Gassnola and Adidas as boosters in order to move Silvio’s case forward.
I agree that KU probably isn’t going to escape with no punishment from all of this because money changed hands to influence a recruit to come to KU. Probation, loss of 1 or 2 scholarships, and a lack of oversight label seems probable. Vacating the 2018 games Silvio DeSousa played in seems a possibility as well.
Depending on how a court rules about the status of Gassnola and Adidas, Kurtis Townsend getting tagged with a show-cause wouldn’t shock me and even if he doesn’t, he seems like the most likely to lose his job over this. Self maybe gets a suspension from this, but I don’t see him being fired over this unless some new evidence comes out.
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@HighEliteMajor said in NOA response from KU discussion:
@Marco A realistic question - if folks are tired of the NCAA’s “dictatorial” ways, why do the colleges allow it? I understand the sentiment. We all hate the NCAA I guess. But the schools don’t. The schools make the rules. The schools could upend all of their authority.
To everyone on this topic - The facts aren’t in our favor. All the nit-picking about who knew what, or told someone, or whatever, is irrelevant. Here’s why - the NCAA, with all of that, already leveled its opinion by sending us the NOA. Then, after our Response, they came back with their Reply and said our violations were “severe and egregious.” The NCAA knows these facts and with that, they doubled-down and did not moderate.
@hawkfan01 I don’t think Bray’s comment does anything for KU. The issue for Bray would be if their shoeco paid athletes to go to ND. Then they’d be in the same hot water IF the NCAA had that info. Correct? If details on Zion come out, I think we’ll still look bad … but Duke may look just as bad. And, of course, that is good.
@BeddieKU23 I’m interested in the rule section you’re referring to on using trial or third party evidence. Do you have a reference to that?
The chatter has finally started, universities are talking about upending it. Time for the parasites to go get real jobs. Do I think that the NCAA has a purpose as a loose governing body? Yeah, I guess so, for the sake of all men’s and women’s athletics. But way out on the periphery, and not so much in everyone’s grill as they pick winners and losers while - yeah, I’m saying it - lining their own pockets.
This nation has a serious problem with protecting and further enriching those who already have and or have been in power. Case in point, Condoleeza Rice. I like her, always have, but what business does she have being on both the NCAA college football playoff committee and the one that recommends changes to college basketball? Because she is a fan? Give me a break.
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@Marco said in NOA response from KU discussion:
@HighEliteMajor said in NOA response from KU discussion:
@Marco A realistic question - if folks are tired of the NCAA’s “dictatorial” ways, why do the colleges allow it? I understand the sentiment. We all hate the NCAA I guess. But the schools don’t. The schools make the rules. The schools could upend all of their authority.
To everyone on this topic - The facts aren’t in our favor. All the nit-picking about who knew what, or told someone, or whatever, is irrelevant. Here’s why - the NCAA, with all of that, already leveled its opinion by sending us the NOA. Then, after our Response, they came back with their Reply and said our violations were “severe and egregious.” The NCAA knows these facts and with that, they doubled-down and did not moderate.
@hawkfan01 I don’t think Bray’s comment does anything for KU. The issue for Bray would be if their shoeco paid athletes to go to ND. Then they’d be in the same hot water IF the NCAA had that info. Correct? If details on Zion come out, I think we’ll still look bad … but Duke may look just as bad. And, of course, that is good.
@BeddieKU23 I’m interested in the rule section you’re referring to on using trial or third party evidence. Do you have a reference to that?
The chatter has finally started, universities are talking about upending it. Time for the parasites to go get real jobs. Do I think that the NCAA has a purpose as a loose governing body? Yeah, I guess so, for the sake of all men’s and women’s athletics. But way out of the periphery, and not so much in everyone’s grill as they pick winners and losers while - yeah, I’m saying it - lining their own pockets.
This nation has a serious problem with protecting and further enriching those who already have and or have been in power. Case in point, Condoleeza Rice. I like her, always have, but what business does she have being on both the NCAA college football playoff committee and one that recommends changes to college basketball? Because she is a fan? Give me a break.
There are cracks forming all around the NCAA’s foundation. NIL is here whether they like it or not. With football becoming an increasingly large share of the market, the NCAA is becoming less and less financially relevant since football is just the conferences and TV. There is no official NCAA title for football like there is in other sports. So there’s proof of concept that at least financially, the jig is up. Power leagues could play postseason tournaments in basketball too. ESPN would love to have a college hoops playoff. The schools wouldn’t have to use the NCAA as a middle man.
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@Texas-Hawk-10 Thanks for the clarification.
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Yes, the NOA response from Bill Self references the NCAA bylaws. In the first post you can download and read where this is posted. Page 26 would be a good place to start.
Bylaw 19.7.8.3.1 Prohibits the Importation of Facts from or Consideration- in this case United States vs Gatto is under appeal.
19.7.8.3.1 Importation of Facts. Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction, which is not under appeal, or by a commission, or similar review of comparable independence, authorized by a member institution or the institution’s university system’s board of trustees and regardless of whether the facts are accepted by the institution or the institution’s university system’s board of trustees, may be accepted as true in the infractions process in concluding whether an institution or individual participating in the previous matter violated NCAA legislation. Evidence submitted and positions taken in such a matter may be considered in the infractions process.
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@BeddieKU23 This is helpful for review, but if I’m reading what you have suggested, it’s not supportive of what you seem to be concluding. You said, “The NCAA violated its own by laws using evidence in the FBI trial against KU in its NOA.” The Rule you sited, see the last sentence, actually says the opposite.
Bill Self’s argument here is very flawed. The “under appeal” qualification only relates to the first clause of the rule … the “Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction, which is not under appeal …” The balance of the paragraph is not qualified by that. In fact, the rule says clearly in a completely separate sentence, again, not qualified by the "under appeal thing, “Evidence submitted and positions taken in such a matter may be considered in the infractions process.”
Below is the full rule. This permits the NCAA to use all evidence and information. But as I mentioned above, the NCAA is not bound by any conclusions. See the operative word “may.”
We all had a discussion a while back where folks were suggesting “conclusive proof.” I made mention how circumstantial evidence is used even in criminal trial. This specifically references “circumstantial” evidence.
19.7.8.3 Basis of Decision. The hearing panel shall base its decision on information presented to it that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs. The information upon which the panel bases its decision may be information that directly or circumstantially supports the alleged violation. (Adopted: 10/30/12 effective 8/1/13, Revised: 8/8/18)
19.7.8.3.1 Importation of Facts. Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction, which is not under appeal, or by a commission, or similar review of comparable independence, authorized by a member institution or the institution’s university system’s board of trustees and regardless of whether the facts are accepted by the institution or the institution’s university system’s board of trustees, may be accepted as true in the infractions process in concluding whether an institution or individual participating in the previous matter violated NCAA legislation. Evidence submitted and positions taken in such a matter may be considered in the infractions process. (Adopted: 8/8/18)
19.7.8.3.2 Materials Not Produced. The hearing panel may infer that materials requested during an investigation by the enforcement staff but not produced by an institution or individual would support an alleged violation for which the party may be subject to penalty pursuant to Bylaw 19.9. (Adopted: 8/8/18)
19.7.8.3.3 Failure or Refusal to Participate in Interview. The hearing panel may view the failure or refusal to participate in an interview requested by the enforcement staff as an admission that an alleged violation, for which the individual may be subject to penalty pursuant to Bylaw 19.9, occurred. (Adopted: 8/8/18)
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@BeddieKU23 Even if the NCAA couldn’t use evidence from the Gatto trial currently, the Gassnola case is not under appeal since he plead guilty from the start. Since Gassnola was the one who primarily dealt with KU, what bylaw prevents the NCAA from using any evidence that came out in Gassnola’s trial?
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So will the NCAA or the virus put an end to KU’s 2020-21 season?
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Gassnola’s testimony was apart of Gatto’s trial. Where was Gassnola’s case separate? If I remember correctly didn’t Gassnola strike a deal with the FBI in exchange for him being a cooperating witness. A lot of the allegations from the NOA against Self and T revolve around Gassnola’s testimony in the trail.
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In 19.7.8.3.1 Importation of Facts.
Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction, which is not under appeal. Doesn’t this clearly state only facts can be used which are not under appeal? I’ll look over this again to see which rule the NCAA used against KU.
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@BeddieKU23 said in NOA response from KU discussion:
Gassnola’s testimony was apart of Gatto’s trial. Where was Gassnola’s case separate? If I remember correctly didn’t Gassnola strike a deal with the FBI in exchange for him being a cooperating witness. A lot of the allegations from the NOA against Self and T revolve around Gassnola’s testimony in the trail.
Gassnola was a witness in Gatto’s trial, but Gassnola was also brought up on his own charges of bribery of corruption and plead guilty to those charges. That means stuff Gassnola said would open to the NCAA because he went through his own legal proceedings.
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@BeddieKU23 said in NOA response from KU discussion:
In 19.7.8.3.1 Importation of Facts.
Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction, which is not under appeal. Doesn’t this clearly state only facts can be used which are not under appeal? I’ll look over this again to see which rule the NCAA used against KU.
Yes, you are correct. but that qualification … “which is under appeal”, only applies to “a decision or judgment” of the court case.
This does not apply to what is listed after that in the paragraph. Specifically, for what’s important to this case, the last sentence - “Evidence submitted and positions taken in such a matter may be considered in the infractions process.”
So the “evidence submitted” can be considered even if the case is under appeal.
It’s tedious, to be sure.
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@Texas-Hawk-10 All of the info in the Gatto trial is available for use by the NCAA except the “Facts established by the decision or judgment” of the court.
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Question. Has the NCAA ever lost? Get ready, with our case soon looming - along with everything else that is going on - they are soon going to. In fact, I’ll take it a step further. The NCAA will soon offer KU very favorable terms, wanting us to get in line. But should we? The NCAA’s days of being judge, jury and executioner are coming to an end.
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@Marco Here’s more what concerns me. USC really was a target for the NCAA. I see some similarities in the NCAA’s approach. I hope you are right.
https://www.espn.com/los-angeles/ncf/news/story?id=5272615
https://www.latimes.com/sports/usc/la-sp-usc-ncaa-sanctions-20140608-story.html
https://www.si.com/college/2018/05/22/todd-mcnair-usc-loses-ncaa-defamation-lawsuit
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@Marco said in NOA response from KU discussion:
Question. Has the NCAA ever lost? Get ready, with our case soon looming - along with everything else that is going on - they are soon going to. In fact, I’ll take it a step further. The NCAA will soon offer KU very favorable terms, wanting us to get in line. But should we? The NCAA’s days of being judge, jury and executioner are coming to an end.
Sort of. They settled with Penn St. and the state government over the fine and vacating Paterno’s wins. https://www.nytimes.com/2015/02/05/sports/ncaafootball/how-one-legislator-helped-penn-state-escape-ncaas-harsh-penalties.html?auth=login-email&login=email
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@HighEliteMajor I think you are misinterpreting the final sentence, not intentionally, but because you are granting way too much leeway to a clause expressly drafted in highly limited terms.
Let’s simplify the language. The first sentence in essence allows the NCAA to accept as true findings and facts established in a decision that is not under appeal. The second sentence says that evidence submitted “in such a matter” may be considered in the infractions process.
“In such a matter” is meaningless if it does not refer to a decision discussed in the first sentence. The phrase simply means that the infractions process can consider the evidence used to arrive at a decision not under appeal.
It is not an independent basis of using collateral evidence. (It really just means I was wrong in saying they are limited to a court’s factual findings–they can look at the underlying evidence, too.)
A basic rule of statutory construction is to interpret subclauses within a clause in a way that effectuates the purpose of the clause. If the second sentence is not a corollary to the first, the clause would simply say the NCAA can use any evidence developed in any proceeding anywhere, even if it is still ongoing.
Another principle of statutory construction is to interpret clauses in a manner that makes sense. It would make no sense to say the NCAA can only accept a final decision’s findings as true, but it can also accept any evidence submitted in a non-final judgment under appeal. A broad grant to look at all types of evidence in a case where it is subject to reversal (i.e., a disavowal on review of the very evidence underlying a flawed decision) contravenes the very purpose of the requirement that the collateral case findings are final.
The second sentence specifically refers to the first, and that therefore limits it.
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Ah… Bs. This whole thing is a stinking business. Justify it anyway ya want. If ya do that ya have no honor. Simple as that. Let that be a lesson. If ya lie with dogs youll wind up with flees. Paint it in any light ya wanna. There’s been dirty dealins going on and ya reap what ya sow. Ass clowns… Smh. Clean house now. Today
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@mayjay Interesting position. Consider, though, the following -
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Very importantly, the two sections in dispute say two entirely different things. The first sentence portion that is qualified by the “not under appeal” language relates solely to “Facts established by a decision or judgment of a court …” That is completely different than what the final sentence refers to, which is “Evidence submitted and positions taken in such a matter …” Two totally different things. The first one are findings – the conclusion of the fact-finder. Thus it makes sense that such a determination would not be something to be relied upon because it is a non-final judgment of another fact-finder. The second sentence is simply the information or evidence that was presented, without the conclusion. That is, the NCAA uses it to reach its own conclusion. The NCAA being the fact-finder. There is no doubt under NCAA rules that the NCAA can use information from nearly any source it chooses and give it the weight it chooses.
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And thus to your correct suggestion to read all of the rule together. In the preceding section, which is the main section (the one we’re discussing is a sub-paragraph), it reads, “19.7.8.3 Basis of Decision. The hearing panel shall base its decision on information presented to it that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs. The information upon which the panel bases its decision may be information that directly or circumstantially supports the alleged violation.” This is very broad. This is clearly the intent.
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Regarding other proceedings, then, the only qualifier is that the NCAA can’t use the “Facts established by a decision or judgment of a court, agency, accrediting body, or other administrative tribunal of competent jurisdiction …” only when those facts established by such a decision/judgment are under appeal. That’s the only qualifier from the language in the rule.
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The final sentence of the subparagraph is plainly one that provides clarification so that it is clear that the NCAA can take the evidence that was presented to make their own decision/judgment.
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Back to our subparagraph. You seem to be ignoring (or at least not give credence to) the “or” … meaning, you seek to apply the “not under appeal” standard to the final sentence when the portion after the “or” is not qualified by appeal. This would indicate clearly to me that the final sentence is not qualified by the “not under appeal” portion.
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I wonder what institution has the stomach to face federal court after the virus wipes out their bottom line? Don’t forget to ask this question of the NCAA, too. Their March Madness payday expired!
Typical court scenario appearing: who has the deepest pockets wins!
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@HighEliteMajor Okay for you to think that if you want to worry about it, but you are ignoring “in such a matter” which refers clearly to a final judgment or decision not under appeal.
If you are an attorney, I will reconsider but you have never answered that question previously. As it is, your analysis reflects what lots of lay people do when reading statutes, even experienced ones. If you are highly experienced in statutory interpretation, especially in permissible collateral uses of evidence or principles relating to res judicata, I will eagerly consider any authority you cite.
Here is an example: SC has a provision saying that no one can leave a car running unattended. A local article said someone got a ticket for leaving his car running in front of his house to heat it up in the winter.
I looked up the provision. It is in a section dealing with operation of vehicles on roadways. The definition of roadway expressly states on a public road or highway, not including private property. I called the reporter to tell him about the provision. He argued, as do you, that the cop whom he talked to had said because it is a separate sentence it granted an independent basis to allow ticketing in a driveway. I called the state law enforcement division. They couldn’t stop laughing.
Context is everything.
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@mayjay I know someone who was actually cited for a dui - and no, it wasn’t me - in his privately owned driveway.
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Very possible. I believe there is a concept that if there is a partially (or fully) intoxicated individual, automobile and keys in the same location, the possibility of disaster is probable and hence warranting conviction. Would be nice to hear from someone who knows what happens when these cases are brought into a courtroom.
I believe an automobile with no keys present is seen as dead weight. Once the keys are present the potential risk is there.
Here’s a twist. What if that individual doesn’t even possess a driver’s license and never did? How far will we convict based on projection (assumption)?
This is an area that has been dominated by social pressures from MADD.
Look at how gun laws, the 2nd Amendment, and gun owners have created such a hot topic. People who push for more gun control are met with stiff defense. Is that strictly paranoid behavior by gun owners who think “give them an inch and they’ll take a mile?”
BTW: I’m not stating my position on gun laws. No way!
My point is that making laws is only one element in creating control. Interpretation and execution is often impacted by social pressures. That’s a big reason why we need a court system on levels leading up to the Supreme Court.
There is no court system on levels within the NCAA. It is a very one-sided structure of justice. Power is held by one body… the prosecutor and judge, with no higher court overseeing direction and power.
“A school or an individual who has been found by a Committee on Infractions panel to have violated the NCAA constitution or bylaws may appeal to the Infractions Appeals Committee. An appeal is not a new hearing that provides a second chance to argue the case.”
So a banana court should govern a nation? The rulings from this institution impacts every citizen of our country, either directly of indirectly. Not just D1 fans.
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@drgnslayr I have never been a fan of the NCAA, think that in many respects it makes the communist party look democratic.
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I was reading a piece from Seth Davis on the Athletic site about this whole situation, but primarily focusing on the potential ramifications of the NCAA ruling Adidas and its representatives as boosters. KU will not be the first school to hear from the NCAA in this regard and go through the new appeals process involving the Independent Resolution Panel. NC State is likely going to be the first school to have its case go before the IRP. Because that group of 15 people with “legal, higher education, and/or sports backgrounds” has never been used before, we don’t know their process or tendencies in regards to how they rule on cases yet. NC State, Kansas, and Louisville are going to end up being the guinea pigs for this.
That matter is largely going to depend on application of the bylaws because a final ruling of Adidas and its employees being considered boosters will have far reaching effects, and not just in college sports.
This is how the NCAA defines a booster,
Boosters, referred to by the NCAA as “representatives of the institution’s athletic interests,” include anyone who has:
•Provided a donation in order to obtain season tickets for any sport at the university.
•Participated in or has been a member of an organization promoting the university’s athletics programs.
•Made financial contributions to the athletic department or to a university booster organization.
•Arranged for or provided employment for enrolled student-athletes.
•Assisted or has been requested by university staff to assist in the recruitment of prospective student-athletes.
•Assisted in providing benefits to enrolled student athletes or their families.
•Been involved otherwise in promoting university athletics.
Once a person, agency, business or other organization identified as a “representative of athletics interests,” that person/entity retains that identity for life.
Only institutional staff members are permitted to recruit prospective student-athletes. Generally, NCAA rules prohibit anyone else from contacting (calling, writing or in-person contact) prospects or the prospect’s relatives or guardian for recruiting purposes.
All of the above is straight from the NCAA’s website how they are able to label Adidas as a booster.
When the NCAA makes their final ruling, will they have a narrow focus on their targets and damn the unintended consequences or will the NCAA take a step back look at the bigger picture of what a ruling of Adidas being a booster would have.
A ruling of Adidas and it’s representatives as boosters could potentially affect Adidas, Nike, and Under Armour in other areas such as section 12 of the NCAA by laws. Section 12 of the NCAA bylaws deals with eligibility issues.
This is from the Seth Davis article, “…Bylaw 12 that says recruits may receive “actual and necessary expenses” for games and practices from outside sponsors “other than an agent or a representative of an institution’s athletics interests.” This would seem to foreclose the possibility of a booster sponsoring a grassroots or AAU team.”
Basically, if the NCAA follows through with ruling Adidas and its representatives as boosters, that will mean that people who play for a lot top AAU programs would lose their eligibility because of how many top AAU programs are sponsored by one of the major apparel companies and coached/ran by a representative of that company.
We’ll just have to wait and see what happens here because these cases are entering uncharted territory and going to end up before a group that’s never been used before so nobody knows what kind of rulings they’re going to make whether they lean towards favoring the NCAA or the schools.
Just looking through the bylaws, I do think the NCAA needs to go back and rework that section and update it in regards to corporate sponsorship. I think the NCAA would be wise to create a new section detailing what is or is not permissable in regards to corporate sponsorship, specifically in regards to apparel companies. Right now under current rules, simply providing uniforms and apparel to athletes makes whoever the providing company is a booster of that school so essentially Adidas, Nike, and Under Armour are boosters for every school they outfit and advertise for based on how the NCAA is applying that label in the KU, Louisville, and NC State cases right now.
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Was listening to this guy on the local sports talk show , I know this isn’t the correct name but some beat writer I believe DeCoursey maybe?
Any ramifications, he said he was talking I guess with some people from the NCAA and he told them you know you take on Kansas - -they gonna be coming back at you hard , KU not going to take this laying down.
He said he fully believes that yes KU does deserve some penalitites, and that KU will even admit there were wrong doings BUT he said that as soon as these are levied this thing will go to Court and in the end the NCAA is going to come out looking really bad. -
They asked what he thought might happen as far as penalities. He said he thought MAYBE a scenario might be where the 2018 banner might be removed - - and MAYBE being withheld from a year of post season even though he said he felt unsure about that.
Talked about the possibility that Coach Self might be suspended for or around 30 5 of the games which he said equaled to around 9 games , he Said IF that were to happen that KU might accept that and be done with it. He said KU will face the embarrassment of this for a bit - -but in the end that the NCAA is the one that’s going to come out looking really bad and losing this , talking about this whole thing may hurt KU in recruiting for just a bit he feels that KU for sure will take this to court and in the end will win this thing. - -He said that the thing is with like Louisville and others is that Louisville cleaned house - - New Coach /AD and total turnover , mentioned NC State and the actions they had taken - -then said the thing with Ku is same coach, pretty much saying that the NCAA looking at Ku and saying they basically have done nothing to correct - - ROCK CHALK ALL DAY LONG BABY
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@drgnslayr one could argue that if the NCAA doesn’t come down on us, we are no longer a victim, I suppose. But I might also then argue that the fact that we had to defend ourselves makes the case that we were a victim.
Hmmm
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@hawkfan01 hire the private detectives now.
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I think Self and crew are legit. That didn’t change with the “are we cool?” statement and other stuff. D1 is corrupt. Self and crew are trying to compete. What are they supposed to do? There exists a host of miscellaneous questionable leeches hanging around all top recruits. It’s all part of the game.
We haven’t been caught with our hand in the cookie jar and we pulled players off the court when there was a problem. Everything else is about optics.
I realize the feds calling us victims most likely helped them do what they wanted to do… go after Adidas. But if they had discovered hard evidence pinning us to the crime then we would fall, too, because that would enhance the conviction.
The NCAA is in deep if they take the “Adidas is a booster” path. Where does that stop? Pretty much makes all businesses associated with the game a booster.
I consider their pushing us to say Adidas is a booster in order to bring back Silvio EXTORTION! They pushed us into stating something we don’t believe in (we can back that up) in order to release the strong arm on Silvio.
We should file that with the DOJ and push for a criminal prosecution.
