Officials say it’s time to move on; school won’t file lawsuit

By Steve Reeves

TUSCALOOSA | University of Alabama Interim President Barry Mason said Wednesday a lawsuit against the NCAA isn’t a likely option and Crimson Tide fans should move on.

“It’s time for us to unite and for us to move beyond any old wounds," Mason said. “There’s no further avenue to pursue. We have to look to the future."

Meanwhile, two prominent attorneys with extensive NCAA experience said even if UA were to pursue getting relief from the crippling NCAA sanctions against its football program in court, the odds of a successful outcome are a longshot.

The NCAA has been successfully sued in the past, but never by an institution seeking relief from penalties for recruiting violations.

A Pittsburgh-based attorney who has faced the NCAA numerous times in court had two words for UA if it decides to sue: “Good luck."

C. James Zeszutek, an attorney who has represented Purdue, Tulane and Syracuse universities in NCAA-related matters, said the NCAA goes by its own rules and that there is no recourse for a university that has an appeal denied. Zeszutek said any lawsuit filed by UA would likely be quickly dismissed.

“The case would be thrown out of court," he said. “The courts have said the NCAA is a private institution. They can govern themselves."

The U.S. Supreme Court has upheld the NCAA’s ability to enforce its regulations, most notably in a 1984 case involving former University of Nevada-Las Vegas basketball coach Jerry Tarkanian.

The NCAA had ordered UNLV to suspend Tarkanian from his coaching duties for two years, and the Supreme Court upheld that decision. The effect of that decision is that universities and colleges must comply with NCAA rules with no recourse in the courts.

Zeszutek said such unilateral authority mandated by the Tarkanian decision also means that universities are at the mercy of the NCAA with no hope of further appeal.

“I think you should have an opportunity to take it to state or federal court," he said. “When you have no recourse other than an organization that governs itself, you can’t expect to have a just outcome. There just aren’t any checks and balances."

Zeszutek said the Supreme Court would have to overturn the Tarkanian decision for UA to have any success.

But there’s no indication that the University of Alabama plans to file a lawsuit.

The UA board of trustees would make the decision whether to sue, and several UA trustees said Tuesday that they think the university should accept the penalties and move on.

The board meets today and Friday, but the NCAA issue is not an official agenda item.

Robert Cunningham, the Mobile attorney who led UA’s appeal process, appeared to capitulate, saying, “There is nowhere for us to go."

The football program will lose 21 scholarships and two bowl games because of recruiting violations. The university appealed the decision, arguing in part that the NCAA violated its own bylaws in determining the penalties.

That sparked talk, mostly by enraged Tide fans, of possible litigation against the NCAA.

“To my knowledge there has never been a successful challenge of a penalty decision," said Chicago-based attorney Rich Hilliard, a former NCAA investigator who worked on UA’s defense team. “The track record is pretty one-sided."

Hilliard said the power of the NCAA, a voluntary organization, to enforce penalty decisions is absolute.

“If you agree to be a member of the NCAA, then you agree to go by their rules and by-laws," he said. “As far as challenging the rules and by-laws of enforcement by the NCAA, there’s never been a successful challenge by a member institution."

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