By Last Updated on June 5, 2014
Twitter is all abuzz today with news that the NCAA is not finished with the Cam Newton investigation. I never believed it was over, but now it has been confirmed.
On a related note, Cam Newton was not found guilty of violating any SEC bylaws, and many of you don’t understand why. I’m going to try to put my lawyer hat on and try to make some sense of this situation. First, let’s take a look at the bylaw everyone is pointing to in this situation:
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.
Those highlighted words – “receives or agrees to receive” – are the key here, and I see why it’s confusing to some. This is one of those times that my three years and mountain of law school debt actually pays off.
When I first heard that the SEC had declared there was no violation, but first thought was that they must be interpreting this provision in terms of contract law. It’s logical to read “agrees to receive” and think, “Hey, Cam’s father told Mississippi State he would take x amount of money for Cam to go to school there; that’s agreeing to receive.” Not in the world of contract law, however.
In contract law, Cecil Newton’s statements were merely an offer, or perhaps a solicitation for bids. An offer is a manifestation of willingness to enter into a bargain. Basically, you’re saying to the other person, ”If you’re willing to do x, then y will happen.”
In order to have a completed contract, one party has to make an offer, the other has to accept (on the same terms proposed by the offer) and there must be consideration (the money actually changing hands would have been consideration).
Cecil Newton made an offer, which Mississippi State was free to accept (and create a contract), but did not. Alternatively, you could say Cecil Newton was merely soliciting bids, which doesn’t even constitute an offer. In that case, Mississippi State would have had to make the offer and then Cecil could have accepted.
I found this quote from SEC spokesman, Charles Bloom, in The Clarion-Ledger that confirms my suspicions about why there was no violation here:
SEC Bylaw 14.01.3.2 does not apply in this situation. It only applies when there is an actual payment of an improper benefit, or an agreement (such as a handshake agreement) to pay and receive an improper benefit. The facts in this case, as we understand them, are that the student-athlete’s father, without the knowledge of the student-athlete, solicited improper payments (which were rejected) from an institution the young man did not attend, and that the institution where the young man is enrolled was not involved.
Notice I highlighted “agreement” – they’re looking for a completed contract. Could they have worded the bylaw better and made it a violation for a student-athlete or his parent to solicit an offer? Of course, and I would imagine that’s what they’re planning to do now that they’re saying they’re going to revisit the provision. This is absolutely a loophole they need to close.
Could they have interpreted this bylaw differently and declared Cam Newton in violation because of his father’s actions? Sure, but they would have opened themselves to a lawsuit by Cam and possibly Auburn. The decision may defy logic for some, but it was absolutely the decision the SEC had to make in order to protect itself. (That’s not to say revision isn’t in order.)
Justin
July 14, 2011Excellent stuff, although you do leave out the Mississippi State alum street agent Kenny Rogers, who was the one that solicited from them. Cecil never talked directly to Mississippi State.
I’m also not so sure the rule needs that much revision. If Cam really didn’t know Rogers was asking for money (on the Newtons’ behalf, according to Rogers) should he really be punished, especially when nothing came from it? Meanwhile, they say the rule doesn’t stop anyone from asking for cash, but it does. If you GET the cash, you’re ineligible.
But, again, excellent stuff and a great breakdown.
Mike Wennerlund
July 14, 2011Kristi,
Where did you attend law school? From your quoting of the Clarion-Ledger, I assume it was in Mississippi. My cousin graduated from Ole Miss law school in 2008 or 2009.
Anyways, I am currently in law school, and loved your breakdown of the language in the bylaw. The language is obviously centered on the acceptance and/or agreement to accept by the player/member of player’s family. It is irrelevant as to what the school does. The bylaw, from reading the “plainly unambiguous” language (thanks law school), is not triggered until said event occurs.
Seems pretty simple to me. Too bad “lay people” do not see it….
Kristi Dosh
July 14, 2011“Where did you attend law school?”
I read that and was sure you were about to tell me how wrong I was and insult my school, lol. What can I say? I get lots of hate mail.
I went to law school at University of Florida.
Glad you agree with my analysis!
Douche Spotter
October 12, 2011Not a Bama fan, but really don’t like the way it all smells. Sorry for pulling the douche card, but your post just sounded arrogant. Someone linked this article, most likely mistakenly.
Best wishes.
Douche Spotter
October 12, 2011You’re coming off like a douchebag. Too bad you can’t see it.
Mike Wennerlund
October 12, 2011HAHA, Douche Spotter. First, I made that comment months ago. Second, its obvious you have a case of Bammer Butthurt extra bad today with the news of the COMPLETE exoneration of Auburn. The national championship isn’t going anywhere, and neither is Cam’s heisman. Sleep on that for a while in your mother’s basement.
Mike Wennerlund
July 14, 2011Haha…no no no…Levin School of Law is a great law school. I had never heard of you before this was posted on my team’s message board today, but I will be stopping back around to check on the posts in the future.
Keep up the good work!
Derek
July 14, 2011Clearly well written article!
Jim Clemmer
July 15, 2011I hear you when you are on with Jack Arute and Mike Leach and really like your opinions.
You wrote: “Cecil Newton made an offer, which Mississippi State was free to accept (and create a contract), but did not.”
I don’t believe you can say that. You might say that there is no evidence that Mississippi State accepted or attempted to accept the offer.
From a contract law, what if Mississippi State had attempted to accept the offer, but Cecil declined because he had a better one?
Kevin Patterson
July 15, 2011I don’t believe you can say that. You might say that there is no evidence that Mississippi State accepted or attempted to accept the offer.
From a contract law, what if Mississippi State had attempted to accept the offer, but Cecil declined because he had a better one?
Why does Cecil have to have a better offer to decline? Maybe he knew his son would be in trouble with the NCAA if he followed through, maybe he didn’t solicit anyone rather someone solicited him first, or he knew it would make him look horrible as a father and pastor. There are many what if’s but the bottom line is Cecil didn’t accept anything. And why does Auburn’s name and reputation have to be dragged through the mud when they didn’t know anything about the situation? The focus should be on Miss St. not Auburn. Auburn and Cecil complied with the NCAA by giving banking records and such and they found nothing illegal. Why do people insist on Auburn did something wrong? Come on guys….
Thank you Kristi for a wonderful breakdown of the bylaw.
Danny Bartlett
July 15, 2011Remember the recruitment of Michael Oher in the movie, “Blind Side?” The white little brother was asking for all kinds of benefits. Would this be a violation?
(I know it was just a movie and I am NOT saying those things really happened, but if they did, and do, were they and are they violations?
If so, my goodness. I would imagine that violations occur daily. As a poster on another message board said, there is no difference between soliciting for a car, money, a meal, or a baseball cap.
And how can you monitor everyone that would solicit? Can anyone walk up to a coach, and say, “Hey Coach, I’m so and so and I represent such and such. Here is what it will take to get the kid here.” Is that a violation?
Oh, the tangled webs we weave… .
ZClayton Fan
July 15, 2011Your article is nicely written and you used definite sources to reference in your article, something that Joe Schad, Pete Thamel , Pat Forde and Thayer Evans routinely fail to do. Another well-written article(series) you may want to read to round out your knowledge of this saga is provided here: http://www.nevertoyieldfoundation.com/2011/the-curious-case-of-cameron-newton-part-i-a-gators-tale/ This four part series would be well worth your time as an informed college football writer.