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Objection! Honest Logic vs. Clay Travis

Vanderbilt Law School is no match for Magruder.

Being that the rapidly-evolving Cam Cycle was on pause for the weekend, I thought it might be a good idea to review the cases being made against our boy out on the intertubes, specifically Clay Travis’s piece at Fanhouse, in which he outlines several ways that Cam Newton could be ruled ineligible not by NCAA but SEC bylaws.

Now, I am no lawyer. But I find it hard to believe that Travis is correct.

The initial point he makes is that asking for benefits is indistinct from agreeing to receive them. We can all agree on the text of the SEC bylaws :

If at any time before or after matriculation in a member institution a student-athlete or any member of his/her family receives or agrees to receive, directly or indirectly, any aid or assistance beyond or in addition to that permitted by the Bylaws of this Conference (except such aid or assistance as such student-athlete may receive from those persons on whom the student is naturally or legally dependent for support), such student- athlete shall be ineligible for competition in any intercollegiate sport within the Conference for the remainder of his/her college career.

That’s Section Where Travis is (first) wrong is when he states the following :

A solicitation is a request or encouragement of another to perform an act. If Cecil Newton solicited Mississippi State then he agreed to receive the improper benefits by nature of the solicitation.

First of all : if that is true, why don’t the bylaws clearly state it is illegal to ask for benefits? In fact, the language therein seems to be structured to explicitly exclude asking for benefits from the discussion. The bylaws do make it crystal clear that receiving money is verboten – if it is illegal to ask for benefits, then there’s no reason to establish the illegality of receiving benefits*. If the writers of the bylaws wanted it to be illegal to ask, then they could and would have made that clear. Why obfuscate the letter and the spirit of the law?

Second, asking for something is distinct from entering into an agreement to receive it. I can understand Travis’s point in that asking is indicating a potential willingness to receive. But with respect to an agreement to receive money, this potential willingness is not sufficient to constitute an agreement – what the bylaws describe is an oral or written contract.

Let’s say you want to buy an old church organ, and Cecil Newton has one he could sell. He turns to you and says “I’d sell this organ for $180,000. You got that kind of money?” In that moment, we can agree, Cecil has indicated he might take some cash for an old organ, but he has not yet agreed to sell. In order to enter into an agreement, both you and Cecil have to agree to exchange goods. If you assent, and he assents, and you start to figure out who is paying for the U-Haul, that is an agreement. If, however, he decides to donate the organ to another church, well, you can kiss that old music-maker goodbye. It was never your organ, because no agreement had been forged – despite the fact that Cecil had floated a price to you.

(This ought to be perfectly clear to anyone not looking frantically for a way to disqualify our superhero quarterback.)

The second and more wide-reaching point is his insinuation that “the SEC’s bylaw [regarding unethical conduct] has no knowledge requirement.” Here, he says (somewhat farcically) :

…much of the media attention thus far has focused on whether Cam Newton knew that his father solicited Mississippi State for payment (if those allegations prove true). That focus on Cam’s knowledge is based upon a reading of the NCAA’s own bylaws. But the SEC’s bylaw has no knowledge requirement.

The bylaw to which he refers is section The pertinent statement within this section (which he emphasizes) is :

The Commissioner has the duty and power to investigate the validity of violations and impose penalties and sanctions against member institutions, their athletic staff members or student-athletes, for practices and conduct which violate the spirit, as well as the letter of NCAA and SEC rules and regulations. This shall include the ability to render prospective student-athletes or current student-athletes ineligible for competition due to their involvement in a violation of NCAA or SEC rules that occurs during the individual’s recruitment.

It baffles the mind. Travis is suggesting that a student athlete could be involved in a recruiting violation, without even knowing that violation is occurring, and that this would be a breach of ethical conduct. I can’t understand how such a thing is possible. It’s a stretch enough to say that a player could have true involvement with things that happened without him knowing. But it’s flat ludicrous to claim that the player himself violated any ethical precept, because of actions taken by someone else, of which he had no knowledge.

Certainly, if Cam violated the rules, he’s acted unethically. And certainly if others violated the rules on Cam’s behalf with his knowledge, he’s allowed a violation to occur and has acted unethically. And certainly, if others violated the rules without Cam’s knowledge, they have acted unethically… but how is this third scenario at all a reflection on Cam’s ethics? Clay Travis is suggesting that, because the SEC bylaws have no knowledge clause, student-athletes can be held ethically responsible for actions others took without their knowledge. In other words, he is saying that a person is ethically responsible for actions that they did not take and could not have prevented. They are ethically responsible for things with which it was impossible for them to ethically engage. Again : flat ludicrous. The bylaw has no knowledge clause for the same reason it has no rutabaga clause – that wouldn’t make any sense.

That horse is going to have a hell of a time pushing its cart around.

For what it’s worth, I read through the SEC and NCAA bylaws regarding student-athletes’ eligibility, and as best as I can tell, they are in agreement. There doesn’t seem to be a way a player could violate one and not violate the other in identical fashion. Thus, I’m confident in Cam’s eligibility, until such a time as we hear that Cecil entered into some oral or written contract, or that Cam had some knowledge of the goings-on. Auburn and their roided-up compliance department seem to have made exact right decision, based on the information which we now enjoy**.

So, one might ask, why is this important? If we take SEC football on the whole from a flat, non-homeric perspective, it could be claimed that this is just a business and the bylaws are the bylaws, and they mean what important people say they mean. This is merely an opportunity to establish that meaning. And of folks who share Mr. Travis’s opinion can successfully establish their case, then to the victor go the spoils and tough luck for #2. Why, beyond any affection / antipathy for Auburn, would this decision even matter?

Cam Newton’s case is important, and not just to Auburn and their future opponents. Think about why these laws are structured as they are. Let’s say you have a son, a huge mack-truck of a nose tackle who mauls offensive lines and mows down quarterbacks and is being recruited throughout the SEC. And that you’re in a bitter dispute with an ex-spouse, who might threaten to torpedo his ineligibility if certain demands aren’t met. Or your own brother is in a bad way, in a tight spot for cash, and could see an opportunity to escape his dire straits by offering to steer his nephew toward a certain school. Does it hurt the asker to casually propose a price to a major university? Probably not, if no bargain is struck – correct me if I’m wrong but I can’t imagine there would be legal repercussions for that. Would that asking end the student-athlete’s career? If Clay Travis is right, then yes, it would.

This is a precedent that the NCAA could not afford to set. If a student-athlete could be rendered ineligible by their family member asking for money (but not even agreeing to receive it) without the athlete’s knowledge, this opens a potentially lethal weakness in that athlete’s eligibility from which they can not be protected***. It becomes easier to use athletes as bargaining chips, not harder. Forget for the moment that it doesn’t make a lick of sense with the letter of the law, that an athlete ought to at least be able to engage an issue without being tarred as unethical. The spirit of the bylaw is to protect athletes from the ethical dilemma of selling their amateur playing time. Clay Travis’s reading of these bylaws would open the door for student-athletes to be used as bargaining chips without their knowledge.

Ironically enough, if Clay Travis is right, then Newton v. NCAA would be more effective in weakening amateur status than in protecting it. After all, if these kids are made more vulnerable by laws meant to ensconce their amateur status, then perhaps the solution is to bring all the sordid dealings into the open where the spurious solicitations can have no power. Make it legal to request and receive payment for LOI’s, and the accountants can sort out what’s real and what isn’t.

It’s a neat trick: reading a bylaw and finding a meaning that contradicts both the language therein and the express purpose thereof, a potential interpretation within the law that allows the law to evaporate with a single precedent. I’m genuinely impressed – guess this is what lawyers are paid to do. But this precedent would be dangerous. If, with the information we have now, Cam Newton is ruled ineligible, that special protected status of the student-athlete is irreparably weakened.

So I don’t care who you root for – college, pro, Bama, ‘Cocks, Ducks or no one at all. If you have any love for this sport, honest logic and rational self-interest demand that you root for Cam Newton.

War Damn Eagle. Hat tip to my dad for realizing why the bylaws are structured as they are.

* That is, unless receiving benefits without asking for them is an ethical offense, in which case I’m about to send Mark Ingram and Trent Richardson five bucks and a letter that says “Please continue to play at Bama” by registered mail, thankyouverymuch Mr. Slive.

** Which does not preclude further bombshells, of course – the lies have to stop somewhere, eh? I’ll say – for the record, indelibly – that if further revelations prove Cecil struck a deal for real, or that Cam had any clue this was going on… then no mercy whatsoever for anyone involved. I believe that I can count only on what I earn. I believe in obedience to law because it protects the rights of all. So daisy-cutters for everyone, service with a smile. Hard work, but I’d pony up for that round.

*** Think people aren’t that vindictive or that nasty? Think again.

Don’t just let Magruder clean the Clay Travis off the fan — show your support for Cam (and our sponsors) by purchasing a Stand By Your Cam t-shirt.

John has been going to Auburn games since before he was born. He was in –Legion Field- utero when Bo went over the top. Some mothers play Mozart to their developing progeny. John was raised on the roars of the Tiger faithful. You can chart his growth with his fantastic column, God, Girl, Grill, Gridiron, and write to him at [email protected].

Did you read his piece on the hyper-amateurization of college football?

About John

John Magruder has been going to Auburn games since before he was born, and when Bo went over the top, he was at Legion Field. Some mothers play Mozart to their developing progeny. John was raised on the roars of the Tiger faithful.

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