Return, Expansion, and the Phog of War
IT’S GOOD TO BE BACK
Some of you probably felt duped by another flash in the pan blog. Look, I had a TON of work fall in my lap at the just the moment I launched the last story. Such is life. But just when the saga of Silvio De Sousa was all but over, opportunity knocks once again. I will keep the old file just in case, but it seems like a good time to move on to the next thing.
“I acted in a youthful and inappropriate way, not in a manner people have come to expect from me. For this, I am sorry. I promise my fans and the public it will not happen again.”
As the days dragged on and the months flew by, you were all on my mind. Now that the time has come to relaunch, I want to ensure that content will be regularly added despite the rigors of scheduling. There will be at least two ways to accomplish this:
(1) That content will mostly be projects smaller in scope than the previous, overly ambitious treatise.
(2) It is my honor to announce two colleagues who will join me in generating the type of content to whet the appetite of sports lawyers and sports fans alike!
My first contributor has been a sportscaster in radio and television for over 20 years. He has appeared on ESPN broadcasts and is a play-by-play announcer for NCAA Division I Men’s Basketball and Football. His experience as an umpire for Minor League Baseball will give you a look at how the rules get interpreted and analyzed in real-time.
Rounding out this trio is an attorney who started as a public defender in a small town before becoming an in-house legal analyst at one of the largest hedge funds in New York City. A true sports fanatic with knowledge of the subjects that are important in the world of Big-Money Sports: contracts, securities, antitrust, etc…
“I guess the first thing that comes to mind is more would be more…More would be better in the playoffs. Four right now, go to eight and eventually get to 16.”
PHOG OF WAR
How about that KU v. K-State game, eh? All of a sudden there’s a rivalry! Maybe not in basketball…or football…but you know…it’s now a big deal. Like you, I’ve been devouring the generous amount of content erupting from this event. The way I see it, there are two main issues being discussed by the pundits and fans: 1) whether one team or the other is at fault; and 2) whether the suspensions handed down are appropriate.
The facts are well-known, but refresh by giving this a watch.
“Games have been called the lab for the development of moral attributes, but they will not, of themselves, accomplish this purpose. They must be properly conducted by competent individuals.”
I’ve sifted through a fair amount of media, and have determined there are four unique opinions on the question of who is ultimately to blame for starting this fight:
- Since KU was running out the clock, K-State precipitated conflict by stealing the ball and attempting some kind of 23-point layup. If that’s your opinion, you are not alone. Shannon Sharpe shows no hesitation when asked. Same for Mike Golic.
- Jalen Rose thinks KU was at fault for letting the ball get stolen in the first place. If they protect the ball, the game is over (of course, he goes on to espouse #3 as well).
- If the steal is fair, the block is fair. But the stare-down by De Sousa after the block is what takes this situation off the cliff, according to Stephen A. Smith.
- The game was essentially over, so the steal was silly, the block was fair, but, regardless of whether Gordon deserved to get stared-down for being a silly person, only when the players came off the bench and made contact with one another did it become a fight. Here’s Richard Jefferson responding to Rose. Also, see Jay Bilas‘ article, paragraphs 6-10.
“The only way to prove you’re a good sport is to lose.”
What happened at the end of this game was a train wreck. As such, I will analyze this as if there had been a negligent collision of two things that were never supposed to have collided, rather than from some criminal violation by one or more actors (I doubt any criminal charges get filed from this incident). I will do my best to explain the concepts for casual fans, as well! Let’s assume in the aftermath, that both teams to have sued each other for negligence. Negligence has three essential characteristics (or maybe 4, depending on how you look at it): 1) there must be a duty of care owed by one party to the other, or in this case perhaps by both parties to each other; 2) there must be a breach of that duty; and, 3) the complaining party must have suffered some harm that is caused by the offender’s breach.
Both teams owed one another a duty of care. That duty was to play within the rules of the game. There is a trust that the opponent will play by the same rules as one’s own team, and the officiating crew is to maintain fairness in enforcing those rules.
Both teams breached that duty to one another because a bench-clearing brawl is definitely conduct outside the scope of a fair basketball game.
Both teams have suffered harm. While the physical harm could have been worse, the public perception of both teams is diminished. But the fundamental question here is who caused this.
“Sports teaches you character, it teaches you to play by the rules, it teaches you to know what it feels like to win and lose-it teaches you about life.”
–Billie Jean King
There are two tiers of causation: Cause-in Fact and Proximate Cause.
Cause-in-Fact essentially means that “but for” some event or conduct, the harm would not have occurred. Obviously, this creates a chain of blame that can quickly consume all of humanity, so we must break the causal chain somewhere. For example, but for De Sousa staring down Gordon, the pushing would not have happened…But for the blocked shot, the stare-down would not have occurred…But for the steal, the blocked shot would not be possible…But for the frustration of losing, the steal might not have happened……….But for James Naismith inventing the game of basketball…etc.
Proximate cause is like an editing tool that can cut the chain of causation down to the segment where legal liability may be imposed. We need to find the earliest event in the chain that is reasonably foreseeable to lead directly to the end result. We might ask ourselves, “at which event in this sequence is a reasonable person able to foresee that the point of no return has been reached, and the resulting harm is now unavoidable?” The Tennessee Supreme Court described it well: “[p]roximate cause, or legal cause, concerns a determination of whether legal liability should be imposed where cause in fact has been established. Proximate or legal cause is a policy decision made by the legislature or the courts to deny liability for otherwise actionable conduct based on considerations of logic, common sense, policy, precedent and ‘our more or less inadequately expressed ideas of what justice demands or of what is administratively possible and convenient.'” Snyder v. LTG Lufttechnische GmbH, 955 S.W. 2d 252 (Tenn. 1997)(citations omitted).
In other words…
“A pinch is a pinch. If you pinch my right nipple, I’m going to say, ‘ouch.’ If I pinch your right nipple, you’re going to say ‘ouch.’ A foul is a foul and a flagrant is a flagrant.”
Referring to the opinions of Shannon Sharpe and Mike Golic, DaJuan Gordon of K-State is at fault here. Gordon’s steal is definitely in the chain of cause in fact, but precedent is strongly against a reasonable person foreseeing it would lead directly to the resulting brawl. After all, that precedent was set earlier in Kansas’ season in a blowout win against Monmouth. In the waning seconds, George Papas stole the ball from a Kansas player who was nonchalantly dribbling out the clock. Papas dunked the ball, taunted the same Kansas player, earned a technical foul, then vigorously chanted the New Jersey state motto. But there was no fight.
Jalen Rose believes Kansas should never have let Gordon steal the ball. But this is going even further back in time beyond the point that precedent declines to impose liability. If the steal is insufficient for a reasonable person to foresee a direct link to the resulting harm, then the “but for” events prior to the steal are also severed from liability.
Stephen A. Smith said De Sousa “instigated it” by staring down Gordon after blocking the layup attempt. Even though this is moving in the right direction, it still is not close enough to reasonably foresee a direct link. Referring to the Monmouth incident again, after Papas dunked the ball, he taunted the KU player, and the technical foul was called. In all levels of basketball, taunting earns a technical foul. The technical foul is like a built-in remedy specifically meant to deescalate the tensions of an overly aggressive action by one team or player. For additional reference, while the NBA is considered only persuasive authority outside the jurisdiction of college basketball, it is still a good barometer because the NBA has exhibited incidents far worse than KU v. KSU. And this video shows that the NBA has not always enforced taunting strictly. But no fisticuffs here, either.
Jay Bilas in paragraphs 6-10 of his article states “[i]nstead of simply allowing Kansas to run the clock out and end the game, DaJuan Gordon stole the ball from De Sousa and sprinted with the ball to the other end to score. That was unnecessary. De Sousa, who lost the ball to Gordon, sprinted down the floor and blocked Gordon’s shot. That was unnecessary. After the blocked shot, with the clock at 0:00 and the game literally over, De Sousa stood over Gordon, who had fallen to the floor, and taunted him. That was wholly unnecessary. But none of that unnecessary stuff was a fight. It contributed to an atmosphere where a fight might break out, but none of it was a fight. The fight started when Kansas State players, led by Antonio Gordon and James Love III, left the Kansas State bench and physically went after De Sousa on the baseline. De Sousa was knocked down, and the fight began.” (emphasis added)
Richard Jefferson concurs that the K-State players coming off the bench and making contact with De Sousa was the catalyzing event. This holds up and is supported by the earlier-mentioned logic and common sense considerations of causation as explained in the Tennessee Snyder case. If one seeks to know who is at fault for the violence, it is common sense to find the source of actual violence. The aggressive contact by K-State is enough here because it is outside of the rules governing a dead ball, end-of-game scenario. As Jay Bilas says, the unnecessary stuff “contributed to an atmosphere where a fight might break out, but none of it was a fight.”
For the foregoing reasons, K-State is at fault for starting the fight by leaving the bench and making contact with De Sousa.
“I don’t understand referees. It appears like some players can’t even be touched, but in my case, everyone can hit me as hard as they can.”
The second issue is whether the suspensions handed down by the Big XII Conference are appropriate and proportional given the nature of what transpired, and the balance of the blame. Even though K-State is to blame for the source of violence, Kansas cannot be exonerated completely because it was a willing participant.
There are two rules that govern shared liability in negligence: Contributory negligence and Comparative negligence.
If we follow the Contributory Negligence Rule, once the K-State players left the bench and were charging toward De Sousa, it must be determined whether De Sousa and the rest of the Kansas team had the Last Clear Chance to avoid the harm by dodging or evading the K-State players. If KU did not have a chance to avoid, then KU could recover damages for which K-State is at fault. If KU did have the Last Clear Chance to avoid, but welcomed the contact without evasive maneuvers, KU would be barred from recovery. Luckily, Kansas is a Comparative Negligence state, so it is unnecessary to make that call.
Under the Comparative Negligence Rule, and in terms of monetary damages, each side is essentially due the damages caused by the other. For example, and perhaps one with many crude assumptions omitted for simplicity, if there were $1,000,000 in combined damages to both parties, and the blame is 60% K-State to 40% KU, then KU would be able to collect damages from K-State in the amount of $200,000 (that is $600,000 from K-State’s liability, minus $400,000 of KU’s own contributory negligence).
Allow me a quick digression and disclaimer: Here, the damages we are talking about are games-suspended, not money. Since suspensions have an exclusively negative value, and because the teams do not play each other every game, the analysis is not the same as it would be with currency. So for our purposes (and really for this entire blog since it is meant for entertainment only), this analysis is entirely my own, and not to be relied upon for any real-world problems.
There were suspensions worth twenty-five games handed out. KU received fourteen, K-State eleven. That essentially means, in the opinion of the Big XII Conference, KU was 56% liable, while K-State only 44%.
The most recent incident on point is that of UC vs. Xavier. In the aftermath of this love-in, Cincinnati was handed nineteen games to Xavier’s eleven, for a total of thirty. It should be noted that, like KU, Xavier was the much better team, and held a similar lead over Cincinnati as KU held over K-State, and in both cases, the conflict occurred at the end of the game. It is plainly shown that the Cincinnati player makes first contact. Given the same analytical treatment, Cincinnati was found 63% liable while Xavier was only 37% liable. Are the optics of the stool De Sousa raised in the air (which never materialized into additional violence) worth a 19% swing that augments KU’s liability to the point it essentially overrides K-State’s responsibility as the legal cause? I do not believe it is. Dickie V, are you serious, Baby?!?
Because of the prior causation analysis, and because of precedent set in college basketball for a violent outbreak of similar scale and duration, it is my opinion that the Big XII’s assignment of suspensions is backwards. It does not comport with common sense in the context of this situation to allow the party responsible for the source of the actual violence to be less than 50% liable for the resulting harm.
“Accountability is essential to personal growth, as well as team growth. How can you improve if you’re never wrong? If you don’t admit a mistake, and take responsibility for it, you’re bound to make the same one again.”
Silvio De Sousa v. NCAA (Part I: The Press Release)
Why? I mean, really, why would I choose such a complex topic for my first substantive post? Feel free to chime in because I need answers. I’ve burned over a week combing through articles, judicial opinions, doctoral dissertations, and oh yeah, the NCAA’s own Division 1 Manual. It’s a tight read. Book of the year material. Because of the magnitude of the De Sousa situation, it has generated dozens of questions, each spiraling into more peripheral and tangential issues that have dragged me, not only through the NCAA rulebook, but all the way to the U.S. Constitution. The biggest question I discovered is one that I had never before thought to ask, and yet on its face, is so simple that I cannot believe how I had overlooked it for so long: Where does the NCAA get its authority?
This story will be released in a four-part series. In Part I, I will dissect the NCAA’s Public Press Release that you should read, then leave open for reference by clicking here. In Part II, I will examine what I believe are the “statutes” from the 2018-19 Division I Manual most relevant to the De Sousa situation. You can download the Division I Manual for free here. Part III will focus on some key judicial opinions from actual NCAA lawsuits and how they might affect the very real prospect of De Sousa in a potential lawsuit against the NCAA. In Part IV I will bring it all together, make my case, and let the (BLUE) chips fall where they may.
“That’s what it is, it’s a %#&damn heart. You guys show me you got one of these things, and we’ll go out there and win this game tonight!” –Pete Bell (Nick Nolte); Blue Chips (Paramount Pictures 1994).
Think of the NCAA Press Release as a judicial opinion (the judge’s written explanation of the decision of the court); a judicial opinion that doesn’t have to cite sources of authority for its conclusions; a judicial opinion that doesn’t feel the need to indicate precisely where to find the rules that give rise to the violation; a judicial opinion that declines to provide all the facts that aided in the decision. It’s marvelously deficient, but it’s all we’ve got. It isn’t lengthy. It’s quite easily digestible. Indeed, being untethered from the encumbrances of precedent and fairness could give it ultimate freedom to pursue fantasy in a way genuine judicial opinions are restrained, although it cunningly demurs toward a compact canard. After all, too much information is dangerous in the hands of a critical reader.
That said, we want to extract something, right? What should we look for? What is the useful information? Once the key facts are listed, most attorneys use the IRAC formula in both writing and analyzing. The I = Issue, R = Rule(s), A = Application of facts to the rule(s), C = Conclusion. This is how we will approach the Press Release.
“I don’t expect to win enough games to be put on NCAA probation. I just want to win enough to warrant an investigation.” –Bob Devaney
Other than the student-athlete or other personnel under the umbrella of the NCAA, the press releases do not tend to give names. Scanning through the release we can see the following facts:
(1) “De Sousa’s guardian received payment of $2,500 from an agent and booster of the [University of Kansas].” NCAA provides reinstatement decision for Kansas’ Silvio De Sousa, Nat’l. Coll. Aths. Assoc., http://www.ncaa.org/about/resources/media-center/news/ncaa-provides-reinstatement-decision-kansas-silvio-de-sousa (February 1, 2019, 6:05pm). And,
(2) “[De Sousa’s guardian] agreed to accept additional payment of $20,000 from the same individual and an Adidas employee for securing De Sousa’s enrollment at Kansas.” Id.
I submitted a list of questions to the NCAA in a media inquiry last week, hoping to establish a clearer understanding of the facts contributing to their decision. As of this writing, the NCAA has withheld a response. I will, of course, update the post should I ever get one.
I must give credit where credit is due. The best opinions state the issue right away, and the Press Release does just that. It makes everything else easier to understand if the reader knows the controversy under consideration. It boils down to, what question are we trying to answer? The issue is whether “Silvio De Sousa must sit out…because his guardian received payment from a university booster and agent and agreed to receive additional funds from the same person.” Id. The answer, according to the NCAA, is yes.
(Slight digression: Maybe you’ve also noticed that it is difficult to determine exactly how many third parties are involved. The issue statement gives the impression that the initial $2,500 payment and the agreed additional $20,000 were offered by the same singular individual. However, Fact 1 above stated an acceptance of money from “an agent and booster,” and Fact 2 tells us that there was an agreement to accept more money from the “same [agent/booster] AND an Adidas employee” (emphasis added). Id. Did the guardian have an agreement with the agent/booster and a separate Adidas employee, or is the third party an agent/booster/Adidas employee? I don’t know.)
A rule is just what it sounds like. It defines a party, conduct and/or circumstances, and consequences triggered by the party engaging in that conduct and/or existing within those circumstances. The third paragraph states a very clear rule. “[W]hen a prospective student-athlete allows a third party to involve himself in the recruitment process, the prospective student-athlete is then responsible for the actions of that person regardless of whether the prospective student-athlete had knowledge or if benefits were received.” Id.
There is actually one other rule in the Press Release, but since it pertains to the school, not De Sousa, we will ignore it for now.
In order to get to the application section, we will need to compartmentalize the rule into its fundamental parts so we can easily see what facts are relevant. Very briefly, rules can be broken down into either elements or factors. Element rules require that all the elements be present in order for the rule to apply. Factor rules do not require all the factors to be present, and each factor may be treated with more or less importance than others, depending on circumstances. Luckily, this is an element rule. In order to find the elements, we can restate the rule to help determine what must be demonstrated.
“Regardless of whether a prospective student-athlete [PSA] had knowledge or if benefits were received, a [PSA] is responsible for the actions of a third party [when],
 a prospective student-athlete
 allows a third party
 to involve himself in the recruitment process.” Id.
Now we have to plug in the facts to see if we meet the requirements. This is something the Press Release does not do, and you may already sense a problem.
Do we have a prospective student athlete? Yes, Silvio De Sousa satisfies element one.
Did De Sousa allow a third party to do something? Well, we have a third party…the booster/agent (and yes, the guardian, which will be explored in Part II), but what facts do we have that show De Sousa allowed him to do anything? The NCAA does not tell us. I cannot say element two is satisfied at all.
Did the third party involve himself in the recruitment process? We are told that the payment received by De Sousa’s guardian was to “secure his enrollment at Kansas,” Id, so the NCAA certainly thinks so, although the NCAA is flaunting knowledge of the third party’s intent that we cannot corroborate without additional facts.
You can see right away that use of this rule is flawed. It’s bad enough that we do not have sufficient facts to even know if it applies to the situation, but also where does the NCAA draw the boundary line of the PSA’s responsibility for the actions of the third party? The NCAA has no jurisdiction outside of its own rules, of course, so if the agent robs a liquor store, then De Sousa cannot be responsible for that. Hypothetically, what if it could be shown that De Sousa allowed the third party to become involved in the recruitment process with no violations taking place, except the same third party did pay money to another recruit without De Sousa’s knowledge? Can De Sousa be held responsible for that? Read it again. The rule does not express that the responsibility of the student-athlete ceases to exist beyond the sphere of his own recruitment.
What does that mean? I’m not certain, but it could mean that, if there is a booster in contact with multiple PSAs, and if one of those PSAs is discovered to have received impermissible benefits from that booster, then even without knowledge of it by the other PSAs, the NCAA can start with the presumption that any PSA who came into contact with the booster has violated the rule, and could effectively shift the burden of proof onto the PSAs to defend themselves, without the NCAA holding any evidence against them whatsoever. Wild.
The NCAA’s conclusion is that De Sousa has committed a violation. Maybe they have the facts, and if so, the rule is the rule, right? The 2018-19 NCAA Division I Manual is 440 pages long. It contains both the NCAA Constitution and all the Bylaws that govern every player, coach, and school. The rule above; the rule the NCAA states in its press release; the only rule the NCAA cites in disqualifying Silvio De Sousa…is not in that Manual.
“You use trick plays when you don’t think you can beat them straight up.” –Lou Holtz
Stay tuned for Part II…
The Journey Begins
Thanks for joining me!
As long as I can remember, I’ve been a sports fan. I’ve played them, watched them, followed my teams and favorite players, wept, yelled, screamed, jumped with joy, crumbled in defeat, won, lost, suffered, and paraded in glorious victory. And that was just the third inning.
Today is a new day, and I have no doubt that, just as all the days before, the game will turn on that one call, made at just the right time to catalyze a rapid change in momentum, and fortunes built on hard-earned progress will be dramatically reversed in the blink of an eye.
The emotional roller coaster is the plight of every sports fan. And while it would be a shame to take all the emotion out of watching, I hope to be able to assuage you of the anguish of feeling like your team was the recipient of a bad call, but not really KNOWING if they were.
This blog will take a look around the sports world and give you an opinion based on legal analysis of the rules, a logical perspective surrounding the situations, and will do so with the intention of making the often complex easily digestible. Most importantly, this is a discussion. I invite your comments, ideas, and participation. I can’t watch every game, every day, so I encourage you to send in your ideas for future posts.
Bear in mind that, just as with decisions in the courts of law, reasonable minds can always disagree. Often times a referee must make a judgment in the heat of the moment on something as subjective as “full control of the ball.” It’s not easy, and unlike those courts of law, sports officials have mere seconds or minutes to take in all the available evidence and issue a holding.
Now, let’s take the field!
The trouble with referees is that they know the rules, but they do not know the game. — Bill Shankly