On the Banks: All Posts by Brooklyn Observer

Oi Vey! Sidney Gopre Commits

2013-03-05T16:28:11Z

I had the pleasure of watching Heart of Stone at the theaters which, as a subplot, chronicled the school's football team's rise. I forget if it concluded with a NJ State Championship, but as a Rutgers fan, there was a lot of joy watching the kids and their families walk into Rutgers Stadium with pride and accomplishment. I've been waiting for a star player to emerge from Weequahic to be Rutgers' next star.

We welcome Sidney Gopre who will join the likes of Richie Roberts and Philip Roth as the next great Indians alum. A true weakside linebacker, with an appropriate comparison to Khaseem Greene - he cures the sting of losing Skai Moore (I'm bitter about that, long story). You would also have to imagine that Weequahic and Newark/Elizabeth area programs will continue to rise and maybe become NJ's version of Miami Northwester/Central.

Justin Nelson Commits - First NJ Recruit is Usually a Good One

2013-03-01T08:01:36Z

Justin Nelson Commits - First NJ Recruit is Usually a Good One

DePaul Cathoic's Justin Nelson becomes Rutgers' first in-state recruit for the 2014. It's been a while since Florida's Josh Hicks came on board - RU's first commits have tended to be good ones including Mo Sanu, Betim Bujari, Ruhan Peele and Anthony Cioffi.

Nelson is well respected in the Northern NJ circles and is close with a few big names that Flood will need to keep in state. Word is that, similar to 2013, many top NJ recruits are looking out of state. However, some of those dynamics could change pending a combination of 1) Campanile's hopeful growth into an ace recruiter; and 2) the right recruit can take a big leadership role in attracting other 2014 classmates (and of course, winning). Nelson seems to be all in on Rutgers, and he's here early enough to get in a lot of ears.

Welcome to the Banks.

Thoughts on Rutgers v. Big East

2012-12-07T20:07:07Z

Amazingly, Rutgers' lawsuit against the Big East for withdrawal and exit fees flew under the radar for over 2 weeks. The complaint was literally filed minutes before B1G issued a press release announcing Rutgers to the Big East. No one really noticed until the last few days.

Leaving aside legal analysis, Rutgers is obviously parroting West Virginia's strategy of using the courts to leverage negotiations for an early exit. Pitt piggybacked off West Virginia's suit and filed one of their own. Each of those cases settled with West Virginia, Notre Dame, TCU and Syracuse all reaching settlement for withdrawal without much drama or expense. Rutgers' move is obviously more offense akin to West Virginia's move and somewhat a formality to engage in negotiations with a pending lawsuit as leverage. Most of this is fairly obvious or at least analyzed at length by the press.

The biggest difference, however, is that Rutgers' lawsuit may have more merit and teeth than West Virginia's or Pittsburgh's claims. I was pretty skeptical of both those prior suits because typically in membership organizations (which the Big East is), a member cannot simply run to the courts because they view the organization as weak. The only real leverage that the previous actions had were 1) home court advantage (thus, the fear of local protectionism by local judges/juries); and 2) the Big East's ability to sustain litigation costs against universities with a better litigation bankroll.

In Rutgers' case, the merits are much stronger because there exists the elements of oppression and arbitrary action/inaction targeted at Rutgers. What's really important is that the substantive standard of law is governed by D.C. law. In most Northeast jurisdictions, breach of fiduciary duty (the primary claim) is governed by the "business judgment rule" which means that in the absence of fraud, bad faith, or gross misconduct, the courts will give deference to the decisions of leadership irrespective of the results. D.C. law scrutinizes decisions of a membership organization based upon "reasonableness". It's not so much a lesser standard, but different and in some cases, broader. A detailed primer into the law would be too long of a post. The relevance, here, is that even if the Big East didn't simply single out Rutgers (through bad faith), the court will engage in far greater scrutiny into the process and decision making.

The West Virginia and Pittsburgh lawsuits had a very limited context to resolve since those conference moves (with Syracuse) were made in a very short span of time. Rutgers now has multiple tiers of precedence on withdrawal protocols: 1) BBall school (Notre Dame); 2) New Member (TCU); 3) Legacy Member (Syracuse); and 4) Immediate Withdrawal (West Virginia). It can also point to impact concerning new membership and scheduling (Temple). And, now they have 3 years of board voting history centered around realignment. Most membership organizations are highly sensitive to their inner dealings. The context of a typical suit would be isolated to certain facts and circumstances. However, Rutgers suit would effectively open up full exposure into all aspects of the Big East which, considering its recent history, would likely be extremely humiliating. Assuming Rutgers' story is true, I am inclined to think Rutgers' claim to revoke membership without penalty may actually be better than strong.

The weakness of Rutgers' lawsuit, IMO, is its claim for withdrawal fees. The conventional wisdom is that the money owed to Rutgers through the Big East would offset Rutgers withdrawal fees. I don't have enough facts from reading the complaint to know the nature of the promise and existence of a vested right to proceeds. However, the fact that Rutgers will receive more lucrative pay from the B1G may end up precluding a claim for monetary disbursements. The "purpose" of the withdrawal fees is to compensate other members from potential loss from withdrawal. This claim may likely be limited to the WVU/TCU scenario where Rutgers lost a valuable home game. Rutgers' burden to prove money damages, especially when the direct beneficiary is the Big East and no money has yet been vested into Big East accounts, may be hard to overcome. Instead, it would likely be shown (apart the fiduciary claims) that Rutgers gained from withdrawal and all other Big East members (new and old) were hurt disproportionately by Rutgers withdrawal. Fortunately, any damage that flows from Rutgers withdrawal (via breach of contract) is limited to the contractual stipulations.

This weakness, however, is not entirely a slam dunk for the Big East either. Rutgers was indeed hurt by the loss of West Virginia/TCU from its schedule. There is some ambiguity on how the promises were made that further court proceedings may shed some light into. If the Big East, indeed, tried to manipulate the proceeds from withdrawal fees in a way to target and hurt Rutgers while letting others go scott free, a court would be hard pressed not to find some additional equitable remedies in favor of Rutgers.

The only remaining thought is whether the Big East will be treating this lawsuit as their Alamo. Bet the house and future, irrespective of the weakness or strengths. The Big East is in a fragile position and may be on the cusp of death. It's not uncommon for distressed firms to engage in suicide pact litigation where there is virtually nothing to lose. I doubt the remaining membership would want to be burdened with this, but some history has demonstrated that the Big East is not the most rational bunch.

That said. I'll just throw this prediction in. Rutgers withdraws from Big East starting 2014 with a $5 million dollar withdrawal fee.

Giving Thanks in a B1G Way

2012-11-22T09:41:27Z

The most anxiety ridden, Babbs-esque fans of our Rutgers faithful have finally found one occasion to sit back, crack open a beer and feel satisfied about the state of our athletics programs. Many of our modern recruits (particularly those from New Jersey) had a great deal of respect for the Rutgers program, but as a Big East brand, the sell was harder for our coaching staff. Internally, the politics and economics of a marquee football program fragmented (IMO needlessly) our communities. The B1G move is as close to a cure all as it gets. The only real question moving forward is athletic performance and adjustments in a very competitive league.

The journey has been tumultuous. But, we've learned many things about our program going through this ride. Enough cannot be said about the leadership and confidence of those who made the most of a very anxious situation. For that, I am very thankful for a lot of different persons who have taken my recent Rutgers fanhood into stability and relevancy.

For my Thanksgiving, I give thanks to the following in 2012:

Tim Pernetti - The obvious choice. Not enough could be said about his leadership and confidence. Conference realignment was really out of our direct control, and the Big East leadership was out of control even with our seat at the table. For realignment, Tim P stayed on message, sold our strengths and prevented any setbacks that could endanger any potential invites to the B1G.

I am more thankful to Tim P more for making Rutgers athletics more about a community than a single person (*cough* Schiano *cough*). Since Schiano's departure, he has been the friendly face of RU Athletics. He understands ambassadorship and that as AD, he is the head cheerleader. Our athletics' message has long been begrudged, mechanical and inaccessible. He understood that outreach and inclusion was key to improving our status within the RU community and to the mainstream. Yet, he did not lose the gravitas and discipline that is often associated with Schiano. I *was* a big Schiano fan (still am, but in a very reserved way). Tim, on the other hand, made being part of a community fun and welcoming. Not enough can be said about how he made Rutgers football engaging apart from the on the field product.

Scarlet Nation's Staff - Except for the legacy blog (Bleed Scarlet) of OnTheBanks.com, Scarlet Nation was my first internet destination for Rutgers football. John Otterstedt built it from scratch. He was not a journalist and was more focused on basketball. The original site was actually just a one page elementary school project for his students. The fanbase there is absolutely nuts and frustrating, but he stuck it out. Over time, he built up a great hub for discussion, community and news. John O still has his day job as a teacher, and he sounds like a hell of a dad. However, him and his staff were at the core of building up Rutgers modern fanbase. It's digital, it's younger, and it's diehard. We're somewhat bourgeois in the college football world, but without a true legacy, we didn't have a true homebase for fandom. We turned to the internet, and Scarlet Nation was there from the start. Now, they're at the center of our new beginnings.

The Rehabilitation of Tom Luicci - Tom Luicci is a twitter natural. If you've followed him and thought he was anti-Rutgers, your opinion of him would change for the better. He's unabashed about his opinions, especially about what he believes would make Rutgers better. He's not anti-Rutgers, he just has a shitty opinion every so often that is more about passion for the program. He's just a pro-Rutgers curmudgeon. Going back to his twitter, read it. He's gone hard against all unfair critics of Rutgers football. His sharp wit and biting style has been more forceful against Rutgers detractors through twitter, where it would it a waste of time to write more than 150 characters.

Class of 2012 - Our greatest single recruiting class in Rutgers history. They understood the vision. They were confident within themselves and self-assurance beyond their years. While a lot of credit for that attitude started with 2011's class, the '12ers hammered it away by sticking together even after Schiano's departure. That's some serious courage.

Myles Nash and Anthony Cioffi (among others) - If there was a single class where Big East affiliation hurt us, it was this year. However, from what I observed, Messrs. Nash and Cioffi took the torch to be recruiting leaders of this year's recruiting class. We were a bit spoiled with the past two classes when it comes to scouting service rankings. With Barnwell and Miller, our class is now rounding out nicely. I'm not a recruiting expert, but those who I have spoken to (and highly respect) assure me that this is a better class than the rankings say.

Nash and Cioffi, nonetheless, took it to the streets to help build the '13 class to what it is now. Nash, in particular, was bold and brash about rallying his co-recruits. (sidenote: Leaving aside the awkwardness of following kids on twitter, the exchanges between Nash and his coach Rob Hinson just crack me up. It reminds me of the relationship that Parcells had with Bryan Cox during their time with the Jets.( Cioffi was a little more low key, but very diligent and public. Others were highly involved, but Nash and Cioffi get my thankful distinction.

Eric LeGrand - He will walk.

Khaseem Greene - He's making the inner-NJ-city story right. One of NJ's biggest problems is turning our urban areas around. Corey Booker's been great (boo Stanford, says my Cal wife) with his passion for Newark. But, Greene's story will have better grassroots impact. I believe it. Greene's been around the worst of it. He's getting out of it without leaving Jersey. Through Rutgers, I just have to believe that more kids out of Newark/Elizabeth/JC would be able to visualize their own success through Greene's path and understand it beyond athletics. It's been a compelling story beyond his beastly defensive performance, and I look forward to hearing more about it when he hits the NFL.

Others that I will have to shout out for thanks - Kyle Flood, Jason Baum, Frank Burns, and RutgersAl. Happy Thanksgiving. Beat Pitt!

The Real Death Penalty For Penn State - The Clery Act - 20 USC s. 1092

2012-07-13T17:02:25Z

The Real Death Penalty For Penn State - The Clery Act - 20 USC s. 1092

The focus on NCAA penalties hits only on the tip of the iceberg when examining the gravity of the repercussions of Penn State's abject failures. It's fairly uncertain whether the NCAA has the jurisdiction to lay the "death penalty" on PSU. If it could, it would not be beyond reason to do so as the crimes and penalty match. However, that's just athletics - even though PSU's world revolves around football like the golden calf.

Federal law has a more harsh penalty - loss of all federally funded financial aid to the student body. The Clery Act, which was put into law in the 1990s, require all institutions of hire education, as a condition to receiving federal tuition assistance, to compile information and disclose reports of certain crimes to university security or local police, irrespective of convictions. Sexual assaults are squarely within the Act.

Congress, in so passing legislation, expressed that the purpose of the Act is to enable "students and employees of institutions of higher education should be aware of the incidence of crime on campus and policies and procedures to prevent crime or to report occurrences of crime."

The federal government generally does not have law enforcement authority over local crimes. To get around that, they can impose affirmative obligations onto entities that accept federal money for their own benefit. Each application requires the university to certify compliance with the Clery Act. In short, burying reports of sexual abuse of children and not disclosing it would be grounds for termination, suspension, or restriction of federal tuition assistance.

There is no greater example of the necessity and value of the Clery Act than PSU's situation. The Act promotes transparency and openness to prevent further crimes from being committed, or allow the public to make a concerted choice about either enrolling in a university or otherwise supporting it. The Freeh report confirms what was common sense - PSU lived in football obsessed environment where Joe Pa and the football program were not answerable or transparent to anyone. Due to these attitudes, more kids were abused and victimized. Had Penn State complied with the Clery Act, at least five more kids would have avoided Sandusky's crimes. But, alas, Joe Pa and crew were more concerned with vanity and football.

The likelihood that the federal government pulls the rug from federal financial aid is extremely slim. Conversely, PSU did raise 200+ million this year and could direct most of that money to student aid instead of to other athletic programs. Even though this is the most blatant context of where the Clery Act remedies are relevant and necessary, academics (which absolutely had nothing to do with PSU's culture of complicity) would be hurt. Emotionally, I think PSU deserves to be shut down because they let the students down. Rationally, I do have some sympathies for students in general - just not for athletic programs.

The threat of suspension, however, remains a powerful tool. There are a lot of prominent examples of where the feds used the power to shut down an institutions but instead entered into consent decrees that essentially put the institution on lock down. Labor union trusteeships with histories of mob influence are prominent examples. Incidentally, a prominent member of Louis Freeh's law firm, Blake Coppotelli, is one of the foremost figures in the enforcement of labor union corruption remediation programs.

Ideally, what I would foresee and hope is that PSU is placed under a trusteeship managed by an independent third party. The rationale is that PSU needs a complete culture change. The current trustees are just cowards or mouthpieces of the same old "Penn State Way". As pointed out by Freeh, the athletics component of PSU has far too much influence over the rest of the school's affairs - from boosters, general administrators, local government, law enforcement, and finances. Although unions are generally useful and designed for a good purpose, the mob's influence was so pervasive that the primary objective was hostage to corrupt goals. PSU is the same way - athletics should be isolated from academics and general university policies so that it may no longer have the power and authority to taint or influence over legitimate and necessary university functions.

Alternative or in addition to a trusteeship, the Clery Act's framework does enable an alternative way of enforcement without ceasing (or a threat thereof) the funding of student aid. As mentioned, PSU must certify that it has complied with the Clery Act in order to receive aid. Indeed, as the Freeh report confirmed, PSU has knowingly submitted false information in exchange for federal funds - which leads to claims and charges under the federal False Claims Act. In other words, the failure to comply and, in turn, false certify constitutes fraud upon the government. Instead of withholding funding, the feds can opt to sue PSU for boatloads of cash (in addition to the civil liability from the victims) for past payments.

In any event, if the feds end up serious, the ultimate goal should be culture remediation. They are defiant as any institution. There are powerful remedies to be sought, more so than the NCAA can impose. All of these discussions could have been mooted if the Penn State, even as early as March 2011 when Ganim's story broke, acted quickly upon notice. However, even with the Freeh report, Penn State still wants to exist in its bubble. The Feds have the clearest jurisdiction and the best tools to enact change. There isn't a better test case for the exercise of their full authority.

This shoots down the theory that the victims only view Sandusky as the only bad actor

2012-07-13T04:11:29Z

This shoots down the theory that the victims only view Sandusky as the only bad actor

"So my client and his mother had a very visceral response to this, and it was manifested in text messages I exchanged with Victim 1's mother. She is just filled with hatred toward Joe Paterno. She just hates him, and reviles him, and pins total blame on him for what happened to her son."

"However, there is an over‐emphasis on "The Penn State Way" as an approach to ...

2012-07-12T14:13:12Z

"However, there is an over‐emphasis on "The Penn State Way" as an approach to decision‐making, a resistance to seeking outside perspectives, and an excessive focus on athletics that can, if not recognized, negatively impact the University’s reputation as a progressive institution."

Bang! Internicola Commits to RU

2012-07-04T03:02:53Z

Bang! Internicola Commits to RU

Nick Internicola has the best opening play for any 2013 recruit's highlight film. And, that is the bang that the Rutgers faithful needed this week (along with Miles Nash's commitment) to help build up the sleeper heavy 2013 class. The Fort Lauderdale, Fl. based linebacker joins Taylor Marini as the second Florida based commit for RU this year.