A View Off a Ledge 2: The News Strikes Back
It’s week 2 here at A View Off A Ledge, and after an insanely long, opinion-laden debut (sorry), the news is overfloweth (which is also why this is late).
You know, when I started last week’s newsletter I certainly didn’t think it was going to be 7,000 words and I don’t think I should be blamed for it. Anyway, I managed to not do that again: We’ll start with a more in depth look at the news world leading off today, featuring where Massachusetts state legislators are at regarding paying college athletes, an update on the current sexual assault due process lawsuit proceedings Boston College is embroiled in, and some previews of what’s coming next week.
Tom Shea closes things out with some NFL playoff restructuring analysis.
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News Analysis: Proposed Mass. State Legislation Would Make Far More Athletes Eligible For Compensation Than California Law That Inspired Mass. Petition
Massachusetts State Representative Carlos Gonzalez presented the state house with a petition last November that mirrors in many ways California’s Fair Pay to Play Act, which forces higher education institutions in California to allow athletes to profit off their image rights. But mirrors doesn’t do the Massachusetts bill justice: Gonzalez has proposed schools must pay 15 percent of revenues out to student athletes and does not limit eligible schools to those that make more than $10 million off its media rights deals.
The Atlantic Coast Conference (ACC) is the only college athletics conference with confirmed payouts of over $10 million to its membership—with the exception of Notre Dame, who don’t take a full payout since they have an independent football deal—with at least one member in the state of Massachusetts (Boston College). ACC schools received just under $30 million per year on average based on the conference’s 990 tax form.
Schools hailing from the Patriot League or Colonial Athletics Association (such as Holy Cross and Northeastern) don’t receive payouts above the $10 million mark—so although they wouldn’t qualify for paying their athletes if they were located in California, they would be under the guideline of the proposed Massachusetts law.
Ivy League numbers don’t appear to be publicly available, though the conference did sign a new media rights deal with ESPN in 2018 according to Sports Business Daily’s John Ourand.
Gonzalez’s petition was filed in the House last November, but the House hasn’t assigned the proposed legislation a hearing date, where plans for turning the petition into a bill that would be assigned to further committee work before any kind of vote is held would take place.
This isn’t a bill that’s on the verge of entering into law, but its potential ramifications are far reaching regardless of the typically lengthy bureaucratic timeline the legislation is currently on—between athletes receiving a cut of university revenues as well as maintaining the ability to pursue image rights deals, the entire landscape of Massachusetts college athletics could be changed. If the NCAA is not able to block institutions from postseason play, suddenly Massachusetts universities would have a major recruiting advantage over other colleges nationwide—BC, for instance, made $47 million in revenue in the 2017-18 fiscal year.
That would mean players could have access to $7 million in payments before they even start to go out and pursue endorsement deals. It’s not clear how universities would be required to split those payments between different athletes participating in different sports, but if every athlete received an equal share of the payout, that would mean students would receive around $8,500 per year on top of scholarships and housing benefits.
Before touching on the potential negative affects the law could have on universities, the other aspect where Gonzalez’s petition diverges from the California law is that the Massachusetts version calls for the creation of an injured player fund that would provide protection for students that suffer career threatening injuries that limit future earning potential.
“Each institution shall establish an injured athlete fund to provide a student-athlete who suffers a career ending or long-term injury during a game or practice with compensation upon his or her graduation,” the petition reads. “The amount of such compensation shall be determined by the department. Such qualifying injury shall be verified by a health care provider.”
Leaving the amount in the hands of university athletic departments and health care providers could be a major risk or leave institutions enough leeway that such funds would provide minimal security, but if successfully implemented could provide potential high earning basketball and football players more incentives to remain in school for longer periods of time—a potentially huge injection of long-term talent that often can’t be found in sports such as basketball or hockey with young draft eligibility ages.
If Massachusetts colleges aren’t willing to cough up that kind of cash and somehow find a way to fight the law or cut athletics programs or benefits in response to an additional $7 million in expenses, for example, it could put a major crimp on recruiting. The same recruiting issues would pop up if the NCAA is successfully able to block schools required to pay its athletes by law from competing in postseason competition.
At colleges such as Holy Cross, payments could be as low as $135 per athlete, which would leave smaller division one institutions at a supreme recruiting disadvantage compared to schools that could manage higher payouts.
The next few months, hearings, and edits to potential bills around the country are sure to change the landscape surrounding college sports. The New York Times reported at the time the California law passed that “as many as a dozen” states such as Florida, Georgia, Minnesota, New York, Pennsylvania, South Carolina, and Washington are all taking a look at similar bills as well.
News Quick Hitters: Inyoung You, The Presidential Primary, And Previews For Next Week
The Heights has reporting out on Inyoung You, the on-hiatus Boston College student accused of manslaughter by the Suffolk District Attorney’s office in a case operating in similar, if not mirrored ground the Michelle Carter case covered. You’s representation is planning on arguing for dismissal of the charges next week, and I’ll be covering what comes next as more info in that case becomes public.
Update: I forgot about this because I was rushing to get the newsletter out: I asked BC to comment on whether or not Inyoung You would be subject to Boston College’s disciplinary process regardless of the outcome of her criminal case. I did not receive a response—there’s a few reasons that could be:
I’m not 100 percent sure BC knows exactly the extent of what is in the unreleased text messages the Suffolk DA’s office is holding onto at the moment. Without a sense of what needs to be looked at, it isn’t in BC’s interest to speculate on what they’ll do after You’s case is resolved one way or another. BC could also be worried about FERPA issues precluding them from disclosing her future status—when Michael Sorkin’s status was always communicated by the administration, that he was on summary suspension facing a trip through the University’s disciplinary process. You’s case is much different, since she took a voluntary leave of absence before her court case really kicked into gear, her alleged violations took place off campus, and BC doesn’t necessarily have access to 100 percent of the evidence on hand the same way they did in Sorkin’s situation.
They could also just be ignoring me.
Well perhaps the bright side of this newsletter coming out later than I wanted it to today is that I got to check the FiveThirtyEight primary forecast a little later than usual. Earlier this week after Senator Bernie Sanders’ emphatic win in the Nevada caucuses, his chances had eased above the chances of a brokered convention as the most likely endgame of this year’s Democratic primary. Now, as former Vice President Joe Biden’s polls are looking stronger in South Carolina, which holds its primary election on Saturday, Biden’s odds have begun to rise again as Sanders chances of winning have dipped back down below the chances of a brokered convention: A brokered convention currently sits at sky high odds of 48%, Sanders follows closely behind as the frontrunner at 37% (his chances peaked in the mid-forties earlier this week), and Biden’s chances have risen back to 13%. Since last week, former New York City Mayor Michael Bloomberg’s chances have dwindled to 2 percent, and former South Bend Mayor Pete Buttigieg’s chances have dipped to 0.1%. He’s fallen below Senator Elizabeth Warren, who currently stands at 0.3%.
Check out this release from the Department of Education a couple of weeks ago. I think there’s a lot more to come on this subject, locally and nationally.
SHEA: Is The NFL Like Charmin Ultra—Is Less More?
The NFL playoffs are on the verge of a major restructuring that has sent reverberations throughout the league and its various fanbases. Thomas! lays out where he stands on the matter.
By Tom Shea
[Editor’s note: This isn’t a Charmin ad, much as I’d like it to be.]
There are two camps when it comes to changing the playoffs: There’s the traditionalist, “If it ain’t broke!” crowd that holds the current format as gospel. Then there’s the Oliver Twist “please sir, I want some more!” gang that likely contains a faction that would wanna see a 32-team bracket. Though my own progressivism has boundaries—I’ll pass on a Bengals-Ravens 1st round matchup, tempting as it may be—I’m here to present the case that the NFL is not akin to nude personified bears who’ve made wiping their own asses into a family affair.
For those still with me, what I mean to say is less is not more.
To recap for those living under Patrick Star’s rock: The NFL is reportedly going to expand the playoffs to 14 teams when a new collective bargaining deal is struck with the league’s players’ union, the NFLPA. The 2 seeds ostensibly get the shaft, as their 1st round bye is replaced by a matchup with the newly instituted 7 seeds.
The traditionalist camp purports the participation trophy argument that the league’s rewarding mediocrity—it certainly would’ve felt disingenuous had any of the 8-8 teams this year won it all (imagine one of Mason Rudolph, Mitch Trubisky or Jason Garrett raising the Lombardi). However, the postseason has actually gotten too chalky: for the 7th straight year both Super Bowl teams had a bye. I’m ok with the NFL shaking up what has essentially become a 4-team playoff.
We can see that the new format rocks the apple cart slightly without hurling it into a Sharknado with some math.
To further cement the Charmin Ultra theme, bear with me here.
Over the last 10 years, the average would-be-7 seed won 9 games on the dot, close to mediocre but nothing like 30-some win NBA teams getting in—and don’t even get me started on the more-artificial-than-Kraft-Singles parity off the NHL loser point. The irony of the ultimate tough guy sport rewarding failure...
But I digress.
Meanwhile, the average 2 seed over that span won 12.1 games. Applying Bill James’ Log 5 formula after factoring in home field, the 2 seed would win around 75% of the time. On average, every other year we’d get a little dose of chaos. That’s more than fine by me.
There’s also an additional wrinkle, albeit a more subjective one: the 1 seed becomes a clear-cut singular villain.
Besides being the only one with a bye, they’ll see a weaker seed on average in the divisional round. In addition, the possibility of seeing a rested 2 seed in the Conference Championship gets eliminated, so they’re guaranteed the extra week of rest over whomever they’d face off against with a berth in the Super Bowl on the line. I think we’ll see the playoffs take on an underlying “us vs. them” theme, where a 1 seed getting toppled will be a ceremonious occasion. There’s still gonna be 18 fanbases sitting at home sniffing their balls; they should have something to root for, too.
The new format will have tentacles in the regular season, too: There won’t be as much resting down the stretch with 1 less bye up for grabs, and on the other end of that spectrum, more teams will be jockeying for that extra wild card spot. The NFL’s always had a catch-22 with their “rivalry week” coinciding with games that generally suck ass. Not only will they maintain momentum heading into the postseason, but they won’t burn a sixth of their divisional games for minimal gain. It’s not going to radically transform week 17 into WWE Raw, but it’s a step in the right direction.
And, for the coup de grace: it’s MORE FOOTBALL!! Wild card weekend now becomes akin to the opening weekend of March Madness—it’s essentially like having back-to-back NFL weeks compressed into one. And whether or not you agree with them having to play, it’ll be fun to see the 2 seeds in action. Hell, who wouldn’t want another week of Rodgers and Mahomes (sentence sponsored by State Farm®: Here to Help Life go Right) [Editor’s note: still not an ad, we’re really making zero dollars from this somehow].
If you watch the games Saturday, pop an Ambien late Saturday night (just don’t tweet), wake up at 1:00 Sunday and watch straight through, your consciousness will have absorbed nothing but NFL football for 20 straight hours—what’s not to love?
Look, I wouldn't be in the “more is better” camp if it were contrived. For example, a 16-team playoff that eliminated byes altogether would disincentivize the regular season and simply be overkill. But I think this expansion strikes the balance between more action and a fair setup for all teams involved.
We have empirical evidence that the 2-team bye setup all but eliminates teams playing on Wild Card Weekend right off the bat. Even the 13-3 Saints, led by franchise QB Taysom Hill, couldn’t buck that trend. So gather your buds around the tv like a sleuth of cartoon bears who are in a oddly chipper mood for having filthy asses, and enjoy our brave new world.
Tom Shea, known to his friends as Thomas!, is, admittedly, a bit of a charlatan. He is brilliantly able to conceal his spoiled Steelers and Penguins fandom under the guise that his Pirates anguish makes him relatable to the masses. You can find him on Twitter @TomShea5ft11. No description can prepare you for that experience.
Editor’s note: If you’d like to contribute some writing, under any genre, to A View Off a Ledge, email me at goldmajk@bc.edu.
Opinion: Current State of Latest BC Sexual Assault Lawsuit Leaves More Questions Than Answers
I stop covering something I broke for four months and suddenly students have zero recourse for fighting back against a disciplinary decision if it’s wrong?
What?
Last November, during my hiatus from doing anything, the First Circuit Court of Appeals ruled on a temporary restraining order allowing a Boston College student accused of committing sexual assault to return to campus because it was so likely his suit against the University would succeed that the presiding district court judge determined irreparable harm would be done to the student if his enrollment status at BC was not restored. The original order was handed down last August.
BC appealed the ruling, and the First Circuit jumped in and may have incidentally destroyed Massachusetts private university students’ constitutional rights to fair process based on a 2000 Massachusetts Supreme Judicial Court ruling on the case Schaer v. Brandeis University. The crux of that decision is that courts should be wary of meddling in private university disciplinary matters. Ironically, in that same decision the dissent is perhaps more interesting than the ruling that has turned Doe’s case, already laden with chaos, into an extraordinary, precedent setting piece of litigation. And that decision came just a few paragraphs after the First Circuit controversially ruled that private university students aren’t entitled to cross-examination the same way public university students are based on Massachusetts contract law.
The Schaer case, the dissent notes, that was before the SJC at that time was not intended to include a ruling on whether the student, Schear, was guilty of sexual misconduct. Justice Roderick Ireland, who would go on to become chief justice of the SJC a decade later, wrote that what was being considered was whether there was so little evidence supporting Schaer’s case that his complaint should be dismissed without further trial proceedings.
Ireland pointed out that although the ruling is adamant that since the Schaer case is based upon whether or not Brandeis breached its contract with the student by not allowing certain pieces of evidence to be heard in Schaer’s original disciplinary hearing, thus Brandeis could not have broken its contract since disciplinary proceeding rules at the time gave Brandeis leeway to run the process however they wanted, Ireland believed such a understanding of the matter was “strained” at best.
“Fundamental Fairness” isn’t exactly the clearest concept in Massachusetts contract law. On the other hand, it does mean exactly what it sounds like it means: When you sign a contract in Massachusetts, you’re entitled to what’s in the contract as well as a termination or disciplinary process that is fair in a “common sense” kind of way.
Yet in the Brandeis case, the majority found that fundamental fairness at a common sense level in Massachusetts means that as long as universities adhere to the contract they’ve signed, their processes are fundamentally fair. Ireland didn’t see it that way, since in the Brandeis contract, it is spelled out that students are entitled to a fair process, and that Schaer’s allegations just repeated into the court record on their own without further examination of evidence was enough to forgo dismissing Schaer’s case before further examining evidence.
None of that is analogous to the situation John Doe, an unnamed student athlete at BC who is the plaintiff in the current case facing the University, currently finds himself in. Doe didn’t make nearly as many haphazard allegations as Schaer did in his case—Schaer’s appeal hinged upon allowing his sister to testify as an expert on the idea that there’s a difference between rape and “regretted sex”—Schaer’s sister had little evidence of expertise in the area—among other things.
Doe’s case hinges on—or perhaps hinged on—whether or not due process requires cross-examination at private colleges or if that only applies to public colleges, as well as whether BC investigators treated him fairly over the course of the disciplinary investigation into Doe’s actions. Doe’s roommate submitted late testimony that he had heard through the wall of their dorm something that amounted to evidence that conflicted with the idea that Doe and his accuser had engaged in non-consensual sex and his testimony was dismissed by both investigators and Vice President of Student Affairs Joy Moore.
No reason for the dismissal has been submitted in court yet, but it’s easy to put the pieces together that Moore and the investigators thought the last-second testimony was actually last ditch testimony intended to save Doe—meaning it was unlikely to be true. Once Doe’s appeal was denied, when he sued BC, the first thing the district court did was get the roommate to swear in and give his testimony to the court—which the roommate did, making the testimony far more bullet-proof: If the roommate is lying, the roommate would face a perjury charge.
In addition, Doe faced a situation similar to what another John Doe who sued BC for mishandling due process rights over a 2011 sexual assault allegation: BC did not convict him of the charge initially leveled at Doe—they found him responsible for a far more grave action.
Doe was investigated for having non-consensual sex with a person incapacitated by alcohol use. Entire sections of the investigation are dedicated to just how drunk Doe’s accuser, identified as Jane Roe in court documents, was. Ultimately, Doe was found innocent of that charge, since investigators decided he could not have known nor could be held responsible for not knowing Roe was incapacitated.
Instead, they found him responsible for committing flat out sexual assault, a charge Doe did not have the opportunity to defend himself over. There’s also plenty of space in the investigation documents committed to laying out the circumstances of Doe and Roe’s sexual encounter in order to provide context for whether consent had occurred or not, but sexual assault is a more serious disciplinary matter with harsher penalties than the original charge Doe faced.
All of this flies in the face of fundamental fairness, even if BC didn’t technically break a rule in the student handbook that serves as the contract guidelines in Doe’s case. There is far more serious evidence, more evidence of potential issues with the investigation into Doe, that led to the initial restraining order allowing Doe to return to BC than there was in the Brandeis case.
Now, it’s not clear if private university students found responsible for sexual misconduct on any Massachusetts college campus have any recourse to defend themselves in court over mishandled university disciplinary processes. Until either the SJC weighs in on this case regarding cross-examination—among the legal community, it’s commonly debated whether the current lack of cross-examination nationwide creates basic fairness issues since cross-examination is considered the lone way of testing whether witness-based evidence is true or not—or Massachusetts legislators pass a bill about this matter, it’s not clear that there is any way to contest a legal case for any student found responsible for sexual misconduct based on basic fairness. The First Circuit was all-too-happy to dismiss that argument on the grounds that if cross-examination isn’t in your student handbook, you’re not entitled to it, not considering whether fundamental fairness by a common sense definition requires that what is considered the standard for fact-finding endeavors may be a useful way to adjudicate allegations so serious that if a student is found guilty of them, it’s essentially impossible to life that down.
If a university engages in what would amount to malpractice or negligence, accused students will still have a shot in court the same way Doe does—he’ll have to push the roommate testimony issue as hard as possible in order to have a chance at winning the lawsuit. But to me, malpractice and basic fairness create the same exact issue for accused students when such guidelines aren’t followed: Negligence or a lack of adherence to basic fairness means students aren’t being given their right to defend themselves. If universities want to take that right away—and I can’t imagine why they would—then I guess this isn’t an issue.
But I lean the other way: This is a massive issue nationwide. Brooklyn College professor KC Johnson and lawyer Samantha Harris of the Foundation for Individual Rights in Education (FIRE) published 50 pages worth of analysis on the issue of campus due process in New York University’s law review last December that took a closer look at the hundreds of lawsuits just like Doe’s that took place around the country last decade. Hundreds of students at least thought their due process rights were infringed upon last decade.
If the First Circuit is right, only a select number of those cases could prove malpractice or negligence, which wouldn’t indicate this is a nationwide issue but rather a selective issue for individual institutions that need to rewrite their student handbooks. Based on how many lawsuits there have been, that doesn’t appear to be the case at all.
The cynical side of me wants to believe that everyone who files a lawsuit against a university for screwing them on a sexual misconduct allegation is lying—in a #MeToo, post-Harvey Weinstein world, it’s more than clear that for time immemorial, men didn’t believe women and rapists got away with it. I want to believe that every single one of these kids did what their universities allege they did.
But I know that’s not true. I covered the last lawsuit against BC extremely closely, and despite the district court judge applying the narrowest possible scope for that case, eliminating multiple areas of evidence that showed BC did not handle the disciplinary hearing process in 2011 correctly, and the John Doe of that case still won over $100,000 in damages. Without a process that is clearly fair, it’s borderline impossible to know exactly how many students have been swept up in the #MeToo movement and spit out by mishandled allegations.
Why mishandled? Because in the 2011 John Doe case, what was never contested was whether the woman assaulted actually was assaulted—it was held as fact that she was, but Doe’s argument was that BC found the wrong person guilty of assault. Doe didn’t win his district court case because he was innocent—the judge made sure that was not even close to considered—but because of BC’s mishandling of the case, which I’m going to assume based on every conversation I’ve ever had with an administrator was mishandled by accident and only with the best intentions for doing justice by the woman assaulted, we’ll never know for sure who was actually responsible.
A decade later, we’re looking at an extremely similar situation, but this time with more evidence to examine. Without cross-examination as a part of the case, though, thanks to the First Circuit ruling cross-examination out because they don’t want to meddle in state laws, until further intervention by other courts or state legislators, a shadow of doubt will be cast over university decisions against accused students in Massachusetts. How is that justice for women who’ve been assaulted?
How are people not versed in the nuances of individual cases supposed to understand which ones came to the correct conclusion and which ones had flawed processes if courts are unwilling to meddle in university disciplinary proceedings or don’t believe fundamental fairness includes ensuring fact-finding investigations are as thorough as possible rather than potentially riding on the whims of individual investigators or adjudicators? That’s not a fair burden to place on said investigators or adjudicators either.
Perhaps this will be an extremely brief period of opaqueness before this case, which could still ask for the SJC to rule on the question of cross-examination after the current period of summary judgement rulings and evidence discovery ends, provides more clarity in matters of Massachusetts law, or before evidence shows that the investigatory practices held as the industry standard at universities across the country is more fair than I understand it to be proves this entire article wrong and anyone concerned about this matter just moves on.
But after the First Circuit ruling was put out, Doe’s lawyers tried to pull an end around on it and get the district court to apply another restraining order, the district court judge railed against the Doe’s lawyers on Christmas Eve, criticizing their tactics as well as their arguments before the First Circuit. Doe’s lawyers actually sent a letter to the judge apologizing for what had taken place and for mishandling Doe’s argument.
Within the next two months, BC threatened to return to the First Circuit for further rulings in an attempt to prevent the question of cross-examination behind heard by the SJC. All that drama paled in comparison to the First Circuit doing everything it could to prevent a Harvard Law professor from joining Doe’s legal team during the appeals process for reasons never released to the public.
There’s nothing about this case that makes any sense to me—not the process its gone through in federal court, not the rulings it’s born out which were “There is no way BC can succeed on the merits of their arguments, thus John Doe is not suspended” all the way to “There is no way Doe can argue that he’s been denied fair process and the temporary restraining order should be revoked,” not the actual BC disciplinary proceedings, which moved the goalposts on Doe and ignored the now-sworn testimony of a potentially key witness.
I thought sexual assault cases were troubling before now because I didn’t think women were being listened to. Now I’m troubled by them because I’m not sure anybody is being heard.
Jack Goldman is the publisher of this here newsletter and an independent reporter who in his spare time goes to Boston College. You shouldn’t follow him on Twitter @the_manofgold and you definitely shouldn’t hit that button down there and subscribe to A View From a Ledge.