We have posted a new story about the James Paxton case today. The story rehashes some facts and puts together some things that have already been written here on the college blog, but there are a few new details that I want to highlight.
I had speculated on the blog last week that Paxton’s best chance to play in 2010 might be to meet with the NCAA investigators and admit that he violated the "no agent" rule, then hope for a penalty in line with Jeremy Sowers’ six-game suspension in 2002. Since writing that, I have learned that the NCAA changed the presumptive penalty for violating the "no agent" rule to permanent ineligibility in January 2006. That change was revealed in documents unsealed by the settlement in the Andy Oliver case this fall. The NCAA has the option to reduce the penalty from permanent ineligibility if there are extenuating circumstances, but don’t expect Paxton to gamble on the NCAA’s mercy. Coming clean about a violation of the "no agent" rule is not a tenable option for Paxton.
That means Paxton’s best chance to play in 2010 is through the temporary injunction he is currently seeking. Paxton’s camp is banking on the court establishing his right of due process, in accordance with the school’s code of conduct. Under that code, Paxton cannot be compelled to give testimony, and his refusal to do so cannot be considered evidence of responsibility for an alleged violation. There is no reason to think anyone from the Scott Boras Corporation or the Blue Jays would testify that Boras represented Paxton in negotiations this summer, so Kentucky would have no evidence firm enough to suspend him. If Paxton’s due process rights are established, it stands to reason that a single newspaper article quoting Blue Jays interim president Paul Beeston would be regarded as hearsay, and would not be enough to prove Paxton violated the "no agent" rule.
Kentucky argued in its legal brief that "a failure to participate in an NCAA interview is, on its face, a violation of NCAA rules and could result in sanctions from the NCAA." Clearly, that contradicts the school’s code of conduct. Paxton’s eligibility likely depends upon which way the court rules on this issue.
Rick Karcher, the director of the Center for Law and Sports at Florida Coastal School of Law, served as an expert witness in the Oliver case and is also serving as an expert witness for Paxton. Karcher argues persuasively in his expert witness report that Kentucky does not have the right to force Paxton to talk to the NCAA.
"The problem here is that the University is putting the cart before the horse," Karcher writes. "Because the member institution, and not the NCAA, is responsible for withholding any student-athlete from competition, a student-athlete can only be sanctioned by the institution for failing to participate in an NCAA interview if the institution has the right to suspend the plantiff for not participating in the interview."
He goes on to argue that there is nothing in the contractual relationship between Paxton and Kentucky that would require him to talk to the NCAA, with whom he has no contract whatsoever.
It’s an interesting gambit, and it just might work.
In the meantime, don’t be surprised if some other names come up in connection with "no agent" violations between now and February. As outlined in the final section of my story today, the NCAA’s investigations into possible "no agent" violations extend far beyond Paxton.
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