Thursday, August 29, 2013

Illustrating the difference in legal standards through the NCAA and Johnny Football autograph situation.

- Do we know that Johnny Manziel took money for autographs by a preponderance of the evidence? In other words, is it more likely than not that Manziel took money for autographs?
- Do we have clear and convincing evidence that Manziel took money for autographs?
- Is there reasonable doubt whether Manziel took money for autographs?

One of the biggest differences between the American judicial system and NCAA enforcement is the former's use of legal standards. The legal standards in the United States are: (1) proof by a preponderance of the evidence; (2) proof by clear and convincing evidence; and (3) proof beyond a reasonable doubt.

For a plaintiff to win in a civil case, proof by a preponderance of the evidence (more likely than not) is usually required. In some cases, such as juvenile or family law, proof is required by clear and convincing evidence. Only in criminal law is proof required beyond a reasonable doubt.

The NCAA enforcement bylaws provide no legal standards for guidance. As a result, lawyers for big-money schools can exonerate student-athletes alleged of wrongdoing as long as the student-athletes deal in cash. It is really that simple: If you deal in cash, it does not matter how brazen the violations are. If you are a big enough school with enough money, you can buy your way out of trouble. The NCAA is complicit in the alleged wrongdoing, because it tries to protect its economic interests in handing out penalties. The NCAA will rarely penalize an athlete if it can make money from him or her.

The rule prohibiting Manziel from signing autographs for money should be changed. He should be able to sign autographs and retain eligibility, just like Olympic athletes can sign autographs for money but still compete in the Olympics. But current NCAA rules prohibit signing for money, and Manziel should have abided by those rules. He was not forced to play college football.

Manziel allegedly signed thousands of autographs. The NCAA's rationale in not penalizing him was that it could not prove that Manziel took money for autographs? By what standard?

It is much more likely than not that Manziel took money for autographs. There is also very likely clear and convincing evidence that he did. This is without subpoena power, which the NCAA lacks. Witnesses said he took money. There are thousands of Manziel-signed items available. There is a picture of him signing autographs in a seedy hotel room with people he did not know. He admittedly hates signing autographs. Also, there is allegedly an audio recording where Manziel basically admits to receiving payment for the autographs.

There might not even be reasonable doubt whether Manziel took money for autographs. It would be for a jury to decide. Public opinion certainly suggests that there is no reasonable doubt, although it is sometimes difficult to determine exactly how much evidence the NCAA could use. Anonymous sources cannot be used. This is analogous to the criminal justice system where a defendant has the right to face his or her accuser.

Despite evidentiary limitations, there is no reason Manziel should not have been penalized. The NCAA even changed its definition of "agent" in January 2012 after the Cam Newton situation, which should have applied here. Manziel's handler allegedly told people that Manziel would not sign autographs for free. The NCAA could have penalized Manziel even without proving he accepted money. It did not do so.

We can be thankful that the American judicial system is more impartial than the NCAA's enforcement process.

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