Montana's Atty General Responds to NCAA

[Green26]

Montana's Attorney General has responded to the ncca and a specific ncaa letter sent to the general counsel of the university of Montana. It's a very good response. The ncaa's position is clearly wrong. The AG's letter is linked in pdf in the press release linked below.

Here's an interesting excerpt from the AG's letter:

"We are aware that at least four other states--Iowa, North Dakota, Mississippi, and Washington--allow betting through sports pools. See Iowa Code ß 99B.6 (2008); Miss. Code ß 75-76-55 (2008); N.D. Cent. Code 53-06.1-03 (2009); Ann. Rev. Code Wash. ß 9.46.0335 (2008). We note that the NCAA has conducted regional and national basketball events in Washington and Football Championship Series playoff games in Iowa. This certainly raises the question of why Montana would be penalized and these other states not."

http://doj.mt.gov/news/releases2009/20090623.asp

[Uncle Rico's Clan]

Fritz Neighbor had a pretty interesting article a few days ago about some the situations where the NCAA seems to forget some of its regulations. It has some interesting information and some good quotes from Doug Fullerton.


http://www.missoulian.com/articles/2009/06/17/sports/sports02.txt

[GannonFan]

Good quote from the article:


Rehberg allowed that the NCAA mandate is well-intentioned, but that “in a digital era, it is also completely inadequate to prevent sports gambling at all.”

While the NCAA is in the right in terms of trying to protect the games and the students, they just miss the target completely when they then hold those games and those students as a bargaining chip with local legislative processes, something the schools and the students have little to no impact in directing.

The other point that comes out in this, and as always with the NCAA, is they are big on enforcement of things when it comes to schools outside the limelight - just with the APR process (a good thing the NCAA does) it's always amazing, however, that the sports factories at the FBS level don't seem to have been impacted while schools outside of that realm are.

[griz8791]

I don't see this letter as resolving the matter but I do see it as the first move in a coordinated response that will hopefully put the NCAA on the defensive. After reading the few statutes that authorize what the NCAA claims it is worried about, I had the uncomfortable feeling that no one at the NCAA had actually tried to compare what is permitted here with what NCAA policy prohibits. The AG's office has now forcefully called BS on that. I hope the next response by the NCAA is either a walk-back or, failing that, a detailed explanation of exactly why it thinks Montana public policy conflicts with NCAA policy. I don't think they can provide that explanation.

[Bill Hanson]

I think either way they end up ruling, no team in the state of Montana will be hosting any NCAA games this year.

[GOKATS]

I think either way they end up ruling, no team in the state of Montana will be hosting any NCAA games this year.

I disagree. As far as Montana schools are concerned I think the matter will be resolved prior to the season beginning. Unless the NCAA completely has their head up their ass ( a possiblility I probably shouldn't entirely rule out) it should be a non-issue well before play time.

[griz8791]

Psst . . . Kats . . . I think he means it as a dig. He probably thinks it's clever.

[GOKATS]

Psst . . . Kats . . . I think he means it as a dig. He probably thinks it's clever.

I know, I generally ignore him- just trying to keep it on thread.............xnodx

[Bill Hanson]

Psst . . . Kats . . . I think he means it as a dig. He probably thinks it's clever.


It is not a dig, whatever that is. It is being honest. If the NCAA doesn't rule until the season is already underway it will not take effect until next year. And what the NCAA gets from the Montana schools, or just Montana lets be honest, is a drop in the bucket from what they get from the big schools.

[Retro]

The NCAA stands to lose the most in this if they don't either back down redesign their stance on gambling as whole.. If it were to simply prevent any post-season games from states such as Montana and Iowa and Delaware and those state's premiere teams end up in the playoffs, they stand to lose a lot of revenue to cover playoff expenses and such.

The best thing for the NCAA to do is to back off on the hardcore anti-gambling stance and progess with the times and re-write the rules to say something to the effect of "if your state allows sport wagering on collegiate athletics or games involving your state's schools whether home or away, regular season or post."xreadx

[griz8791]

I jumped to the wrong conclusion about Bill Hanson's post and would like to apologize for doing so.

[Bill Hanson]

Thanks.

[CrazyCat]

In the same scenario, how can they ban the playoffs in the state of Montana this year if they didn't specifically ban them at last years meeting?

[Green26]

If the ncaa doesn't give in on this issue in the next several months, Montana will bring a court action for a preliminary injunction to prevent the ncaa from enforcing the rule. A Montana court would grant the preliminary injunction.

The AG's response provides some information on the ncaa's view. As pointed out by 8791, the AG has completely shot down the ncaa's argument. It looks to me that the ncaa's argument is pretty thin.

I've never thought much of the ncaa, but the ncaa people on the forefront of this issue appear to be incompetent. Hopefully, an ncaa committee will put a stop to this in the coming months.

[jmu_duke07]

I really don't see why any sports betting should be illegal. As long as the kids get no incentive for winning or losing, then let people bet. It's their money and they can do whatever they want.

[JMUDuke2002]

If the ncaa doesn't give in on this issue in the next several months, Montana will bring a court action for a preliminary injunction to prevent the ncaa from enforcing the rule. A Montana court would grant the preliminary injunction.

The AG's response provides some information on the ncaa's view. As pointed out by 8791, the AG has completely shot down the ncaa's argument. It looks to me that the ncaa's argument is pretty thin.

I've never thought much of the ncaa, but the ncaa people on the forefront of this issue appear to be incompetent. Hopefully, an ncaa committee will put a stop to this in the coming months.

A Montana state court would never see the injunction. The second any type of injunction is filed the NCAA would have the case removed to federal court. A federal judge cares a lot less about how these issues play out politically.

But, I think the NCAA will backdown before it ever reaches that point. The NCAA isn't going to want to go to court over this issue. It is a lose/lose for them. A compromise would occur before it would happen.

[Green26]

Who said state court? A federal court in Montana is a Montana court. I will guarantee you that each of the several federal judges in Montana cares about football in the state of Montana. Most of them attended law school in Montana. The federal judge in Missoula played football for the Grizzlies. Another federal judge was in Chattanooga for the national championship game this year. I can't imagine being the Montana judge who sided with the (unpopular) ncaa and decided that playoff games can't be held in Montana. That would be subject to huge criticism in the state and would presumably make it uncomfortable in various situations. Plus, the law and wording of the ncaa policy and Montana gambling law clearly favor Montana.

Duke, you obviously know nothing about federal courts and judges in Montana.

[Green26]

Just looked up the 4 federal court judges in Montana. All 4 went to UM law school. 3 were born in Montana. 2 went to UM undergrad. 1 went to Montana State. All 4 were longtime practitioners in Montana.

[gt_bison]

A Montana state court would never see the injunction. The second any type of injunction is filed the NCAA would have the case removed to federal court. A federal judge cares a lot less about how these issues play out politically.

I'm not sure about this. When the ND Attorney General sued over the Fighting Sioux issue, the case was handled in North Dakota state court all the way through to settlement. The NCAA would need a compelling reason to move the case to federal court, and I'm not sure that it exists, since it's a matter of state law and they're not arguing the state law is in conflict with federal law.

[4th and What?]

Just looked up the 4 federal court judges in Montana. All 4 went to UM law school. 3 were born in Montana. 2 went to UM undergrad. 1 went to Montana State. All 4 were longtime practitioners in Montana.


I'm not a lawyer, but wouldn't this be grounds to move this case out of Montana? While I think the NCAA caseis flimsy, you are obviously stating Montana judges, state or federal, would be biased, and would rule in favor of Montana no matter the NCAA's case....

[griz8791]

Time out for an irony break. Does this discussion about there being no way in hell the NCAA could beat Montana in a Montana court remind anyone on this board of anything?

[Lehigh Football Nation]

Irony nonwithstanding, it's the NCAA's ball so the NCAA will make the rules. If they choose to stand on principle against gambling and/or go to court on this, it's their prerogative. And considering the NCAA has won some cases where they've been standing on flimsy moral ground (UND, William & Mary), I see no reason to believe why they would all of a sudden back down here because they've finally decided to let up on the position they've taken... especially when no Big 10/BCS schools are involved.

[Uncle Rico's Clan]

I'm not a lawyer, but wouldn't this be grounds to move this case out of Montana? While I think the NCAA caseis flimsy, you are obviously stating Montana judges, state or federal, would be biased, and would rule in favor of Montana no matter the NCAA's case....

I don't know the answer to this, but would it even be possibly to move such a case out of state, would another states court system even be willing to hear such a case, would they be willing to use their time, money, facilities to handle something that has little or no impact directly on their state.

[4th and What?]

I don't know the answer to this, but would it even be possibly to move such a case out of state, would another states court system even be willing to hear such a case, would they be willing to use their time, money, facilities to handle something that has little or no impact directly on their state.

The arguments already been made that it would be a federal case. Cases are moved out of state all the time when people would not recieve a fair trial.....at least that's what Law and Order tells me.

[tribe_pride]

The arguments already been made that it would be a federal case. Cases are moved out of state all the time when people would not recieve a fair trial.....at least that's what Law and Order tells me.

This may be way off but depending on what the NCAA bylaws say (or whatever the agreement is called that a college needs to sign to join the NCAA), U of Montana or Montana State may need to file this in whatever jurisdiction where the NCAA is headquartered or another jurisdiction. Many agreements like that will have permissible jurisdictions to file suit.

[gt_bison]

This may be way off but depending on what the NCAA bylaws say (or whatever the agreement is called that a college needs to sign to join the NCAA), U of Montana or Montana State may need to file this in whatever jurisdiction where the NCAA is headquartered or another jurisdiction. Many agreements like that will have permissible jurisdictions to file suit.

Again, let's refer to UND vs. NCAA. It was filed in North Dakota district court in Grand Forks by the North Dakota Attorney General. (See this site (http://www.ag.nd.gov/NCAA/ncaa.htm) for the filings and rulings.) The judge (http://www.ndcourts.com/court/bios/Jahnke.htm) earned both is BS and JD from UND. I can find no documentation that the NCAA ever tried to make this a federal lawsuit or cared that the judge was a UND alum. Frankly, I expect that allegiance over a nickname would be a greater source of potential bias than when dealing with a matter of a state law covering gambling and hosting of postseason games. If Montana sues, I imagine it will be resolved in state court in Montana.

[GannonFan]

Irony nonwithstanding, it's the NCAA's ball so the NCAA will make the rules. If they choose to stand on principle against gambling and/or go to court on this, it's their prerogative. And considering the NCAA has won some cases where they've been standing on flimsy moral ground (UND, William & Mary), I see no reason to believe why they would all of a sudden back down here because they've finally decided to let up on the position they've taken... especially when no Big 10/BCS schools are involved.

Well, the NCAA will certainly win if they take a clear cut, no exemptions at all stance reagarding this. Where they get into murky waters is if they try to come up with a gray definition of what's allowed and what's not allowed. Right now, if they draw a line in the sand and say any betting in any form is disallowed (no, then, to everyone, Nevada, Montana, Delaware, et al) then they have a good case. If they start trying to take that line and make it all curvy, they'll have a much tougher job in court, especially considering the NCAA's spotty track record in this area over the past few years.

As for the mascot case, they won because they were very clear and very uniform in what was and wasn't allowed - no Native American imagery or connection without the specific endorsement of a specific Native American Tribe. UND lost because they couldn't get the approval of the Sioux tribes and W&M lost because their imagery was generic and no specific tribe could say yes or no to it.

[Green26]

A judge can rescuse himself if he believes he has a conflict of interest. Based on what I know, I see no reason for the judges to recuse themselves in this situation. If a judge recuses himeself, the case goes to another judge in the same district. It is very rare for a case filed in one district to get moved out of the district. There just isn't any basis for it. Judges will occasionally change the venue of a trial, if the jury pool is deemed to be too biased due to heavy media, etc. This isn't commonly done either.

Neither I nor anyone else has suggested the Montana judges would be "biased". The judges would follow the rules. However, based on the law and wording of the ncaa policy and Montana gambling law, I believe any judge would likely side with Montana in this situation. This is because Montana law prohibits, and uses strikingly similar language to the ncaa policy, almost exactly what the ncaa policy prohibits. In addition, the ncaa's application of the policy has been inconsistent and both the policy and application appear to be arbitrary. Also, any judge that would be inclined to bend over backwards, which I think Montana judges would in this situation, would have no problem in siding with Montana in this situation.

In a court case, I believe the testimony of the Montana attorney general, the wording of the Montana statute, the Montana constitution

Generally speaking, the ncaa is afraid of litigation. If they lose in court on this one, they will have a harder time imposing their policy on states that permit sports gambling that is more clearly covered by their policy.

[GannonFan]

A judge can rescuse himself if he believes he has a conflict of interest. Based on what I know, I see no reason for the judges to recuse themselves in this situation. If a judge recuses himeself, the case goes to another judge in the same district. It is very rare for a case filed in one district to get moved out of the district. There just isn't any basis for it. Judges will occasionally change the venue of a trial, if the jury pool is deemed to be too biased due to heavy media, etc. This isn't commonly done either.

Neither I nor anyone else has suggested the Montana judges would be "biased". The judges would follow the rules. However, based on the law and wording of the ncaa policy and Montana gambling law, I believe any judge would likely side with Montana in this situation. This is because Montana law prohibits, and uses strikingly similar language to the ncaa policy, almost exactly what the ncaa policy prohibits. In addition, the ncaa's application of the policy has been inconsistent and both the policy and application appear to be arbitrary. Also, any judge that would be inclined to bend over backwards, which I think Montana judges would in this situation, would have no problem in siding with Montana in this situation.

In a court case, I believe the testimony of the Montana attorney general, the wording of the Montana statute, the Montana constitution

Generally speaking, the ncaa is afraid of litigation. If they lose in court on this one, they will have a harder time imposing their policy on states that permit sports gambling that is more clearly covered by their policy.


The NCAA has a policy? Probably news to them. xnodxxlolx

[gt_bison]

As for the mascot case, they won because they were very clear and very uniform in what was and wasn't allowed - no Native American imagery or connection without the specific endorsement of a specific Native American Tribe. UND lost because they couldn't get the approval of the Sioux tribes and W&M lost because their imagery was generic and no specific tribe could say yes or no to it.

Not to get off topic, and I find it hard to believe I'm defending UND, but UND didn't lose their lawsuit, and in fact they had a chance to prevail. However, the state decided to settle and try to get the Sioux tribes on their side. It looks like UND is going to wind up changing nicknames, but they definitely did not lose a lawsuit.

[GannonFan]

Not to get off topic, and I find it hard to believe I'm defending UND, but UND didn't lose their lawsuit, and in fact they had a chance to prevail. However, the state decided to settle and try to get the Sioux tribes on their side. It looks like UND is going to wind up changing nicknames, but they definitely did not lose a lawsuit.


They didn't win either. xpeacex

[tribe_pride]

As for the mascot case, they won because they were very clear and very uniform in what was and wasn't allowed - no Native American imagery or connection without the specific endorsement of a specific Native American Tribe. UND lost because they couldn't get the approval of the Sioux tribes and W&M lost because their imagery was generic and no specific tribe could say yes or no to it.

W&M never went to court over the issue. We appealed to the NCAA and they allowed us to keep the name but lost on the feather. Next step for the feather would have been court but we never filed suit.

And we don't have a mascot. I wouldn't have minded if the NCAA had disallowed Ebirt but we got rid of him on our own.

[Green26]

Gannon, below is the ncaa policy. (There has already been a thread on this.) Note that the ncaa doesn't prohibit all sports wagering; it prohibits only sports wagering based "upon the outcome of any [sporting] event". Thus, what you said above about exceptions and limitations makes no sense. The ncaa has already created the exception, i.e. sports wagering not ased on the outcome of a sporting event.

“No session of the championship may be conducted in a metropolitan area that permits legal wagering that is based upon the outcome of any event (e.g., high school, college or professional) in a sport in which the NCAA conducts a championship.”

[GannonFan]

Gannon, below is the ncaa policy. (There has already been a thread on this.) Note that the ncaa doesn't prohibit all sports wagering; it prohibits only sports wagering based "upon the outcome of any [sporting] event". Thus, what you said above about exceptions and limitations makes no sense. The ncaa has already created the exception, i.e. sports wagering not ased on the outcome of a sporting event.

“No session of the championship may be conducted in a metropolitan area that permits legal wagering that is based upon the outcome of any event (e.g., high school, college or professional) in a sport in which the NCAA conducts a championship.”

Outcome is pretty vague - could be the final score of a game, could be the stats accumulated in a game, etc. And since the NCAA has not enforced this policy in the past, that certainly makes it even more vague. xreadx

[GrizFanStuckInUtah]

Well they better call of the Mountain West Basketball tournament.

http://www.uwire.com/Article.aspx?id=4143710


It is in Vegas for a while and has been for a while. The tournament has an auto bid for the NCAA tournament so I don't see how this would differ, but they choose to turn a blind eye. It seems like someone in Montana pissed someone off in the NCAA and they are just being d!cks about this. Why doesn't the NCAA just mandate playoffs for FBS and do something useful. xreadxxcoffeexxrotatehx

[JMUDuke2002]

Who said state court? A federal court in Montana is a Montana court. I will guarantee you that each of the several federal judges in Montana cares about football in the state of Montana. Most of them attended law school in Montana. The federal judge in Missoula played football for the Grizzlies. Another federal judge was in Chattanooga for the national championship game this year. I can't imagine being the Montana judge who sided with the (unpopular) ncaa and decided that playoff games can't be held in Montana. That would be subject to huge criticism in the state and would presumably make it uncomfortable in various situations. Plus, the law and wording of the ncaa policy and Montana gambling law clearly favor Montana.

Duke, you obviously know nothing about federal courts and judges in Montana.

Yeah, those two years clerking for a federal judge after law school obviously didn't teach me anything about federal courts or federal judges. xwhistlex

It's simple. If the NCAA wanted too, the moment a case is filed in a state court it could file a motion to remove pursuant to 28 USC s 1441. These motions are rarely denied. There doesn't need to be a conflict between federal and state law. If the case could have been filed in federal court, then it can be removed. I won't go into federal subject matter jurisdiction at this time, because this is a football board.

As I stated earlier, the NCAA will never allow it to get that far. They would make a settlement offer or there would be some type of compromise. If, and it is a big IF, Montana decided to pursue such an action a federal judge is going to apply the law. Pure and simple. These men and women take their jobs very seriously, and many, the vast majority in fact, do not want any appearance of bias. Also, as far as recusal is concerned, a judge will rarely recuse themselves unless they have a pecuniary interest the action or they serve in some capacity at a university. I doubt any federal district judge would recuse themselves just because they may have to rule for or against their alma mater.

[griz8791]

Seems like the NCAA could plausibly argue that the dispute isn't ripe for injunctive relief until Selection Sunday.

[Green26]

Hey Duke, can you explain how your clerking for a federal judge (presumably outside of Montana) has made you an expert on the federal judiciary in Montana?

No one would even file the case in state court. They would go directly to federal court.

Obviously, you haven't practiced law very long.

[griz8791]

http://easyfreesmileys.com/smileys/free-character-smileys-238.gif

[JMUDuke2002]

Hey Duke, can you explain how your clerking for a federal judge (presumably outside of Montana) has made you an expert on the federal judiciary in Montana?

No one would even file the case in state court. They would go directly to federal court.

Obviously, you haven't practiced law very long.

Because the federal judiciary, with the exception of differences in local rules and law amongst the circuits, are largely the same. The federal rules of civil procedure really streamlined the process. A federal district judge in montana would still apply the same deadlines, the same procedural process and, most likely, the same 4 part test for injunctive relief.

There are tactical reasons why you would file in state court versus federal court. Any good lawyer, which you obviously are not, knows.

And, griz8791 is right...that is what the NCAA could argue, but I doubt they would. More than likely, they would have tipped their hand by that point and the issue would be ripe for injunctive relief. But, if they have not made any decision prior to that Sunday, any judge would be hard pressed to issue an injunction.

[Green26]

Duke, you don't know what you're talking about. I assume from your name that you graduated from JMU in 2002. Law school takes 3 years. You said you clerked for 2 years. At most, you have practiced for 2 years. Rookie. Yes, again, rookie. Too funny.

Let's hear your tactical reasons for filing this case in state court. If one wants a quick decision, it would just be filed in federal court (assuming it's a case that can be removed to federal court). Why waste time? Why play games? The case for Montana would be very strong. It would just be described in simple terms. The plain language of the policy compared to the Montana law would be overlayed. The Montana AG would testify. The uneven enforcement by the ncaa would be brought out. The decision for a TRO and preliminary injuction would be fairly easy.

The ncaa is going to back down on this one, is my view.

[Uncle Rico's Clan]

Its a little of the subject, but ESPN has an article about the state of New Jersey who is filing a lawsuit challenging the constitutionality of the 1992 federal ban on sports betting, it briefly mentions Montana and Deleware.

http://sports.espn.go.com/espn/news/story?id=4281886