Florida State Releases Response to NCAA COI's Response to FSU's Appeal
by Bud Elliott on Jul 1, 2009 11:01 AM EDT
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FSU's Response to The NCAA Committee on Infractions Response to FSU's Appeal
Read through it and let us know what you see in the comments section. I'll do the same.
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I feel sick
I do like the use of the VERY short sentences scattered throughout. It makes me think that TK wrote these in himself. I am ashamed to be an alum right now.
Actually, it's quite good.
Speaking as a former appellate lawyer (who’s very glad not to be doing this anymore), a good surrebuttal brief is not supposed to rehash the initial brief’s arguments. It’s supposed to hit one’s 2-3 best points in reply to the respondent’s brief, in a short, pithy manner— with short sentences for emphasis. I didn’t read either brief, or the cases quoted, but the tone of this surrebuttal is state of the art. I guarantee it will make the COI lawyers’ blood pressure rise a little.
If the cases requrie an express weighing of the 7 factors, and if the infractions report did not expressly weigh them, and if the IAC cares about the precedent it is setting for future sefl-dislcosures, then this argument is a winner:
"Stated otherwise,the Committee does not appropriately balance the seven factors, or even purport to
consider the seven factors in their entirety, when it discusses only five factors. Nor is it “formulaic” [id. at 5] to require the Committee to address all seven factors explicitly. To do otherwise—to permit the Committee to select the factors it pleases to address, while it passes over the others in silence—renders the seven-factor test manipulable and destroys its tendency to afford valued guidance and predictability. It requires this Committee and affected institutions to accept, without scrutiny and on faith alone, the Committee on Infractions’ generic assertions that it took all relevant considerations into account.
This cannot be. This Committee cannot be compelled to accept at face value the Committee on Infractions’ implicit assertion that no amount of cooperation or selfcorrective action might have justified a lesser penalty. And an institution threatened with the severest sanctions—and this Committee in review of those sanctions—cannot be bound to accept the unhelpful assurance that, in secrecy, the Committee on Infractions actually and properly performed a complete and coherent analysis. Fair play demands a full explanation of that Committee’s assessment of each mitigating factor. Its reasoning
must be open, available, and subject to scrutiny—not concealed. "
by FiestaNole on Jul 1, 2009 12:13 PM EDT up reply actions 1 recs
Which is why this scares me
They certainly do have a leg to stand on if the seven points all have to be weighed and discussed, as well as disclosed in the report. Potential for future precedent is one of their strongest arguments here. The committee is not going to like that they allege abuse of discretion so firmly.
Not much the COI can do at this point.
The cases quoted by FSU’s attorneys seem to indicate that when the COI commits this kind of error, the IAC doesn’t remand the case to the COI for a second bite at the apple— the IAC simply reduces the penalties imposed by the COI.
As for the future- if the COI is like a trial judge, then once you show you’ll take them to the mat and get them reversed, you’ve got their begrudging respect. And they will never rule against you lightly.
which is why
The COI was so thorough in their initial text, which I thought was VERY well laid out, and also in their rebuttal, which I kind of see as the nail in the coffin.
I don’t see BB getting his wins back.
This is wrong. That is pure hyperbole.
So that’s the tone they were going for?
Being an engineer, I typically understand the general tone and logic surrounding the arguments in court cases and debates. Usually the tone changes to the shorter, less substantial arguements when one has no leg to stand on, and already proven wrong and/or incompetent.
Sorry, but being an engineer
you really don’t understand the art, rules and customs of legal argumentation. You may well be the smartest guy in the room. I know because I’ve represented, worked with, and used as experts many engineers. But the rules of the appellate process are out of your experience. FSU’s lawyers did a fine job hitting on the one thing that would cause reversal.
That one thing is not arguing the COI’s findings of fact. The IAC, like any appellate body, will defer to the trier of fact on those matters.
The winning approach is showing that that the lower “court” (COI) did not follow the legal standards set forth in other cases by the appellate court. That’s an error of law, and the rules require that the lower court receive no deference in that matter.
Again, not having read this case or the other cases, I won’t predict the outcome here. But if the underlying report and the process is as FSU’s lawyers’ say they were, then I would not be surprised to see FSU win the appeal.
by FiestaNole on Jul 1, 2009 12:47 PM EDT up reply actions 1 recs
This is key
That one thing is not arguing the COI’s findings of fact. The IAC, like any appellate body, will defer to the trier of fact on those matters.
We tried to argue the issues of fact in the initial appeal.
Let me add this point, because it may help you in your career.
At some, you will be deposed. Do not make the mistake of underestimating the lawyers. As an engineer, I’m sure you are a brilliant linear thinker with a mathematical mind.
Lawyers, however, have well developed “people” skills which most engineers do not naturally have. That’s evidenced by your assumption that this is “hyperbole”.
Lawyers know how to persuade people, including the lawyers who sit on appellate panels. The rules for the tone and approach in various types of briefs have been developed by collective experience over many decades.
Do yourself and your career a favor: recognize your natural limitation in tis arena, and work on it. Engineers who learn this lesson can become very valuable, and very well compensated, expert witnesses and senior executives.
I'm not a "typical" engineer.
I do not understand the “art” of legal proceedings, but my mother is a court reporter, and I have sat in on a dozen or so trials, and I can generally see where the case is going by the tone of the lawyers. Not just the tone of the questioning, but their body language, posturing, etc.
I would say that I have “advanced” people skills. Not just for an engineer, but in general. I typically have a harder time smelling the BS from the techincal mis-steps of a person than from their mannerisms and body language. I do not drink Mt Dew and sit in a cube all day. I would question your assumption that I have a natural limitation in people skills due to my profession.
I don’t want you to feel like I’m stepping on your thone here. I DO in fact realize that law is not my specialty, and I understand that there are certain times when the tone of an argument changes for a reason. I was suprised by how “snippy” the response was. If you say this is good in a legal text, then great. I’ll believe you and hope that it is convincing for its intended audience.
I understand from your tone that you thought I was saying “This is wrong. That is pure hyperbole.” to you, when in fact I was quoting text from the response, in essence making the point that it is very much like how I would expect TK to speak when angry. Hence my original comment (and partial joke) that TK had inserted lines.
Please don’t worry about my career. I’ll be just fine.
by PBD on Jul 1, 2009 1:28 PM EDT up reply actions
Dude
I’m glad you sat in an many trials, watched impromtu argumentation, and saw how a trial devolves.
This isn’t a trial. It’s a structured appeal, and you don’t understand the difference.
You’re comparing dancing in a mosh pit with a minuet.
That’s why most good trial lawyers are not good appellate lawyers.
Listen and learn.
Or don’t.
Smooth down the quills
I told you I’m not here to trample your thone.
I listened. I am not arguing that I know more than you about appellate procedings. I am not arguing that I know a lot about trials. And I am certainly not comparing the two.
Maybe you should relax a bit. Get down off the ledge.
by PBD on Jul 1, 2009 1:46 PM EDT up reply actions
It's no longer my throne.
And re-reading your second-to-last post, I think you’re right. I see you were referring to the brief, not my post.
Sorry.
No problem
I’m not here to rile people. I was just making a statement on something I found odd. Thank you for clarifying and letting me know that this is “normal” language and tone for such a proceeding.
by PBD on Jul 1, 2009 2:07 PM EDT up reply actions
GNF, I can assure you that you do not have well-devoloped people skills.
Thanks for the insight, however.
TRMNole
that insight means a lot, coming from a guy I’ve never met but disagreed with on a public message board.
Nicely done.
No need to go at each other's throats, or balls
Lets just stick to the topic at hand shall we?
'Gentlemen, it is better to have died a small boy than to fumble this football.' John Heisman
'I'm not a Role Model" - Charles Barkley
Yes, and especially in a surrebuttal brief.
They appreciate short, simple, and powerful sentence structure by the time they get around to reading it.
What did you think of the "mistake" argument they make re: Monk & Goldsmith?
They are trying to disassociate themselves from their employees at the time and paint the players as victims. I don’t think they have much here.
To be honest, I just glanced over it.
It seemed to be a tertiary argument, not the one you stake your case on but the kind you make just because you want to at least raise doubt or to invoke a vague feeling in the court that finding for you would not be unjust in the abstract (and that’s part of the soft skills I was talking about— dealing with the panel’s emotions).
But they wisely put their best argument first.
The key here is the if. We will have to wait for the response.
My guess is that there is case law supporting both sides.
I am concerned over the suggestion of preference for a postseason ban a opposed to the loss of wins.
Good breakdown GNF
Coming from
a fan who’s team got a very similar punishment ( we didn’t lose scholly’s) i just don’t get it…I was very happy to hear we had to give up some wins from PAST seasons…that the “probation” did nothing to our future. Sure we are appealing (a move that i think is stupid also) but i just don’t see why FSU/ TK is going so far? I mean i SEE it but I don’t understand it. You guys should put together a march on the campus to show just how pissed off yall are!
I really do believe something has to be done
I’m not sure what exactly that should be. A march isn’t a bad idea. We need something to get the message across to the boosters.
it really wouldn't be all that hard..
participation would be down due to summer BUT im sure you get a few thousand. Heck i know a lot of people in tally who would go.
Postseason Ban
I hadn’t gotten that far and if that is truly the what we are suggesting should happen I am mad beyond comprehension. Our recruits are being sold on the notion that their future will not be affected. This goes completely against that sales pitch and makes the coaches look like asses. You can bet your but our rivals will be using this against us and winning. Look for us to slip out of the top 5 for several top prospects now, ban or not, this was flat out idiotic.
All that aside I’m witn GeorgiaNole I thought the response was pretty good to start and put a very strong tone on our stance and the legality of their case. I can only hope “BAN” was not what we are recommending as a substitute and would like to know if the appeals committee can change penalties or only reduce them?
FSUncensored
On what page did you see the suggestion of a postseason ban? I looked all through there and couldn’t find it.
It's a comparison, not a suggestion. I don't have the file up now (on a diff computer w/o adobe).
Nattylite knew.
It's Page 18 and
It didn’t read to me as a suggestion.
It was put in to discuss the ramifications of a post sseason ban which affects ALL students and the ability to use a tailored VACATION penalty to only affect those students who were found guilty.
That being said, I find it rediculous to even mention post season ban.
Here's the paragraph in question (Note: I typed this out, not a copy and paste)
Some penalties are, in their nature, indivisible, and must affect innocent student-athletes and coaches as well as those who transgress NCAA legislation. A ban on post-season competition, for example, falls equally on all student-athletes and coaches, whether innocent or not. The vacation penalty, however, can easily be tailored by leaving untouched the individual records of innocent student-athletes and coaches.
Like dangling a carrot in front of the COI, no?
'Gentlemen, it is better to have died a small boy than to fumble this football.' John Heisman
'I'm not a Role Model" - Charles Barkley
Unfortunately.
I don’t really think that was their intention however it boggles my mind how you can even it.
I mean that to me is worse than additional schollarship losses.
This makes me angry
The main argument is that the Committee’s response didn’t include a discussion of all seven factors, only the ones pertinent to the case. They continue to contend that the penalty is too harsh. NEWS FLASH: A PENALTY THAT INFLUENCES THE PAST IS MUCH MORE LENIENT THAN ONE THAT CRIPPLES THE FUTURE.
The part that made me the most upset was that it actually suggests on page 19 that a post-season ban would be more fair. UNBELIEVABLE. TK should be run out of town for that. This whole thing is truly incredible to me.
A post season ban vs. a few wins off Bowden's record
WOW.
'Gentlemen, it is better to have died a small boy than to fumble this football.' John Heisman
'I'm not a Role Model" - Charles Barkley
After that, I'm getting the feeling that ..
TK has said f*#@ it, I’m leaving in a year and I want Bowden to have those wins at any cost. (sigh)
I have six locks on my door all in a row. When I go out, I only lock every other one. I figure no matter how long somebody stands there picking the locks, they are always locking three.
Elayne Boosler
I've never really been on the "Let's lynch TK bandwagon", but
man what a douche.
BOOSTERS
PLEASE PUT YOUR FOOT DOWN ON THIS. STOP FUNDING THIS TERRIBLY EMBARRASSING AND POSSIBLY CRIPPLING APPEAL. You didn’t let Bowden have a ridiculous raise, please don’t let TK have more appeal money. Preserve the future of our program. Please stop this.
Is this a nightmare?
'Gentlemen, it is better to have died a small boy than to fumble this football.' John Heisman
'I'm not a Role Model" - Charles Barkley
It might be.
However, I’ve been banging my head against my desk for about an hour now, and I still haven’t woken up.
The legal stuff’s great, whatever (not meant to slight it, I’ll be ready to get into it just like the last round), but oh man, the PR for this round….
This IS a nightmare.
Please explain to me
the basis in which FSU feels they should not have to vacate those wins? Did they not have ineligible players who participated in games in which FSU won? If they did, they should have to vacate those wins…
they are trying to say a couple of things
1. We dealt with it in what was an acceptable fashion – which the COI rebuttal refutes as a separate set of events (re-instating the players)
I don’t recall this argument being brough up in this document, but I didn’t read every bit of it.
2. The coach shouldn’t be punished for the wins, because he didn’t know the players were ineligible (which I think is a silly argument)
3. The COI is abusing the power they have to decide on the punishment (which is the argument they are hitting hardest)
They are looking to make this about how the COI uses latitude in judgment in a somewhat arbitrary manner.
This is simplified, but I thought a quick response might be best in case this was a rhetorical question….
by PBD on Jul 1, 2009 1:34 PM EDT up reply actions
yeah but
that doesn’t matter..guilty by association..the Coaches should have done a better job of controlling their players. Same thing with Alabama. We should have known what these kids were up to. It sounds silly and almost impossible to do…
Their own tutors masterminded the cheating, the tutor's knowledge is umputed to FSU
That part of their argument is bunk.
so....
is that really a valid argument?
FIRST OFF – I UNDERSTAND THAT THESE TWO THINGS ARE DIFFERENT. IT’S AN EXAMPLE.
If I’m speeding through town, and I get pulled over, “I didn’t know I was speeding” isn’t typically valid. You still get cited.
Are you saying now we are in front of the judge claiming equipment malfunction (speedometer)? Seems like something you only get away with once.
by PBD on Jul 1, 2009 1:53 PM EDT up reply actions
They didn't say a post-season ban was better!
It’s important that page 19 be read in the full context of the report. Here, they were comparing how unfair a post-season ban (call this option A) is to a vacation of records i.e. points, TD’s, hits, K’s, wins (call this option B). Obviously a post-seaon ban cannot be modified to effect only those who are guilty. In fact, it usually doesn’t effect those who are guilty. However, a vacation can, atleast that’s what they’re trying to get. Say you have an ineligible PG score 12 points in a win. The way I read it, the PG would not be credited with those 12 points in his career, however the coach would still get his win and all the other players would be credited with their points, assists, rebounds, etc (call this option C). Option A is clearly not acceptable by reason of unfairness to the innocent as the established prior. By comparing Option A to B, you’ve just made B a little less attractive. This makes Option C more attractive. The quiestion now is, will the NCAA bite? I have to say, I’m VERY impressed with this response. I still wish however that we weren’t doing this. This is a PR nightmare!
Do I look like a cat to you, boy? Am I jumpin' around all nimbly-bimbly from tree to tree? Am I drinking milk from a saucer? DO YOU SEE ME EATING MICE? You stop laughing right meow!
by Nole-ando on Jul 1, 2009 1:48 PM EDT reply actions 2 recs
The Next Big Date
I hear TK is taking out a few of the boosters for cocktails and fondu, maybe even a movie afterwards.
'Gentlemen, it is better to have died a small boy than to fumble this football.' John Heisman
'I'm not a Role Model" - Charles Barkley
Sadly, this is probably true and will rake in millions.
Hopefully the boosters will be able to raise their heads above the table long enough to help Bowden spoon his specially-ordered fake-chocolate fondue. “I had to give up chocolate about ten years ago. Around the time I gave up coaching.” [Laughter fills the North Monroe Melting Pot.] Bowden chokes. “Throw money at him! It will resuscitate him!” “All I’ve got’s my checkbook!” “Start writing!!” Then it’s off to see (the appropriately titled) Transformers: Revenge of the Fallen. An evil, centuries-old dictator refuses to give up his power, even though he’s repeatedly defeated by (Urban Meyer-lookalike) Shia LeBeouf. "I like this movie. Jeff would like the talking cars. I’m gonna eBay this when I get home."
Actually, I haven’t seen the movie, but I’ve heard there are two robots whose characters are loosely based on Florida State’s Cameron Wade and Georgia’s Marlon Brown. Robot 1: “I’m supposed to represent the Autobots with honor? wtf the news is crazy….now im on the run ha ha ha im a criminall!!!!” Robot 2: “Hey Megatron, get all u can outta these white cars like me..y u think i got so much money lol.”
by TRMNole on Jul 1, 2009 4:48 PM EDT up reply actions 1 recs
The whole bit about a pitcher's record...
I think the whole individual records bit is bogus. We pulled out the best example (baseball pitching) but a pitcher’s record is much more a “stat” than anything. I don’t see any reason why, even if baseball wins are vacated, a pitchers record can’t be retained for statistical purposes. In any event, it’s hardly meaningful “punishment” to the pitcher — he knows what his record was and it is well-documented throughout the annals of statistical history. I thought that whole section was a big reach.
Truthfully I care more about the timeframe of the appeal process
If say our appeal is accepted, can the COI appeal this appeal or is this the final stage of the appeal process? I’m worried that this appeal process hangs over FSU’s head more another year or so as the appeal process (in all fields) and especially true with the NCAA is notoriously a slow ordeal.
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