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Wednesday, November 26, 2008
Thoughts on Indiana

A couple of thoughts on the NCAA's decision to drop the hammer on Kelvin Sampson, but less so on Indiana, particularly in sparing the Hoosiers from a post-season ban (of course, Indiana is not going to the post-season anytime soon, so the end result is the same).

The NCAA arguably directed punishment in the right place--the recidivist coach who blatantly and willfully broke the rules--rather than the current coach and players who played no role in the misconduct. The NCAA enforcement has been criticized for setting up a scheme in which a coach can cheat at one school, get out of town (often one step ahead of the NCAA posse) and into a new job, leaving his former school to pick up the pieces. But Sampson, not Tom Crean, is the guilty party, so it makes more sense for the NCAA to focus its sanctions on him. Of course, the penalty is largely meaningless. Sampson now is an NBA assistant and likely quite happy to stay there. And, penalty or not, no university president in her right mind would hire Sampson (certainly not within five years, when memories are fresh), because he is not that good a coach as to run the risk of dealing with his misbehavior.

The limit on the above point is that Indiana was not innocent in all of this; the NCAA found the university guilty of "failing to monitor," although not of the more serious "lack of institutional control." Indiana's most obvious failure was hiring Sampson in the first place, despite his being presently under sanctions for breaking NCAA rules.

This brings me to my second point. On ESPN last night, studio commentator Doug Gottlieb defended IU by saying, in essence, the school could not have predicted that Sampson would engage in the exact same misconduct because no one does that. Umm, Mr. Gottlieb, meet Federal Rule of Evidence 404(b). Under ordinary rules of evidence, "prior bad acts" cannot be used to prove current conduct (i.e., "A did X in the past, so you may find that A did Y now"). But FRE 404(b) does the use of prior acts to establish certain facts, such as knowledge, motive, or intent. Under FRE 404(b), the following line would work to prove failure to monitor: "Indiana knew that Sampson had committed these infractions in the past, so it had some knowledge that he might commit them again in the future, but it hired him anyway." But that line of inference would be permitted only if there was some degree of similarity between Sampson's past and current infractions. In other words, the law assumes that people will, in fact, engage in the exact same misconduct and the law allows its evidentiary use only if the misconduct is similar enough.

Finally, for sanctions against individual coaches to have real teeth, the NBA would have to come on board and agree to penalize coaches who cheated while coaching in college. As noted, Sampson does not care about a five-year ban on coaching in college because he probably is quite happy (and doing quite well) as an NBA assistant. Obviously this will not happen for a variety of reasons, some of them sounding in federal antitrust law. But how punished is Sampson if, less than a year after bringing down one of the storied and historically cleanest college programs, he is safely ensconced in a coveted coaching job?


Great post Howard!

I'm not that big on NBA basketball, but I do enjoy college hoops, and the fact that my mom is a proud IU Alumni brings this issue a little closer to home...

I agree that most of the sanctions should be focused on the Sampson, after all, the coach was the one that actually broke the rules.

in regards to sanctions on the University, I would take your FRE exmple a step further. I would propose a standard that would be analogous to dogbite or "one bite rule" laws. This rule would impose a strict laibility standard on any school that hired a coach that has shown a propensity for comitting major NCAA violations.

Blogger Jimmy H -- 11/26/2008 12:44 PM  

In fairness, IU also lost a scholarship and has a few other limitations; the NC2A didn't decide not to punish; it just accepted the punishment IU suggested.

That said, it would at least restore faith in justice if the IU fen living in the Mille Waukee area were to boycott and protest at Bucks games. (It is left as an exercise if anyone would notice.)

Blogger Ken Houghton -- 11/27/2008 12:48 AM  

Ken has a great idea. And his suggestion would be a *perfect* example of the cheering speech that I so long have argued must be protected at sporting events. What better place to protest the NBA team's decision to hire a cheater than by waving a sign at the game. It is about sports and to the game and to the team involved in the game, as well as to broader socio-political issues of public importance, including the integrity of college sports and, relatedly, the integrity of higher education.

Now what do you suppose would happen if a fan showed up at game with a "Fire Sampson, the Cheater" sign? What should happen if the Bucks played in a publicly owned and/or publicly financed arena?

Blogger Howard Wasserman -- 11/27/2008 7:21 AM  

"What better place to protest the NBA team's decision to hire a cheater than by waving a sign at the game."

Hmm. Did Mr. Sampson violate any NBA rules? Or should he simply be banned from holding any gainful employment because he violated the rules of one organization? I realize vengeance and retribution are at the core of American society -- particularly the legal profession -- but Mr. Wasserman's embrace of "cheater, cheater" seems particularly childish.

Anonymous Rachel Neri -- 11/27/2008 10:32 PM  

No, not all gainful employment. But perhaps employment in a job at which he has so flagrantly and willfully broken the rules.

My suggestion is that the connection between the NCAA and the NBA is so intimate--the NCAA is, functionally, the NBA's farm system--that the NBA's recognition and respect for the NCAA's rules would go a long way towards helping to gain real enforcement of those rules. Sampson cheated with relative impunity if he commits major rules violations, lands his program in NCAA trouble, then lands in a lucrative NBA assistantship.

And the protest point need not be about firing him. How about "Boo, Sampson, you destroyed IU." My point still stands--that is legitimate protest and I am sure I would be removed from the arena for flashing that sign.

Blogger Howard Wasserman -- 11/28/2008 8:24 AM  

Well to play into Howard's argument, the Bucks play in an arena owned by the state of Wisconsin (financed in part by city revenue bonds and general obligation bonds)...

As long as the sign is not in bad taste, I wouldn't have any problems with it.

By the way, I looked up both the Bucks website and the Bradley Center and could not find any written prohibitions against sings such a sign...

Blogger Jimmy H -- 11/28/2008 7:21 PM  

Your use of FE 404(b) is a stretch. It applies only to Sampson not IU. You can't speculate as to what IU should have known. If your logic is correct, the NCAA should never have placed Sampson on probation in the first place. It should have known he would break the rule rule again. We all know hindsight is 20/20. The right party was punished, however, IU has paid a terrible price for hiring Sampson.

Anonymous Anonymous -- 12/01/2008 4:07 PM  

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