Wednesday, July 30, 2014

Why is Cam Newton Not Guilty of SEC Bylaws Violation?

December 3rd, 2010 | 14 comments »

I don’t normally post anything here that isn’t related to baseball, but I had a need to get this published ASAP.  So, for those who don’t care about college football (what’s wrong with you?), thanks for being tolerant!

After hearing multiple talk radio personalities declare that Cam Newton clearly violated an SEC bylaw, I thought I’d 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.

*For more of Kristi’s sports business articles, visit www.kristidosh.com!

This article offers the personal observations of Kristi Dosh, and does not represent the views of her law firm or its clients. Any information contained herein does not constitute legal advice. Consult your own attorney for legal advice on these matters

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14 Responses to “Why is Cam Newton Not Guilty of SEC Bylaws Violation?”

  1. Why is Cam Newton Not Guilty of SEC Bylaws Violation? | ChuckOliver.Net

    [...] http://www.itsaswingandamiss.com/2010/12/03/why-is-cam-newton-not-guilty-of-sec-bylaws-violation/ [...]

  2. olddawg

    this is exhibit A why a lawyer with no experience in the real world should not be allowed anywhere near a courtroom. I own a couple of bridges I would like to sell this lady.

    What a naive young lady.

  3. Kristi Dosh

    I’m sorry you feel that way. I’ve been practicing law in the “real world” for 3+ years.

    You can make arguments all day for why the SEC chose to interpret this way, and I’m sure you have your own conspiracy theory. That doesn’t change how a lawyer would read this provision. The SEC interpreted in a way that they are not open to a legal attack from anyone. Smart.

  4. chad

    Cecil talking to Kenny Rogers about money is far from an agreement to get money.If the deal was for Cecil to get money when Cam signed with Miss. St. then obviously there was no deal since he signed with Auburn.If people do a little checking on this Kenny Rogers guy,eveyone will begin to see that he is actually the man behind all this.

  5. Darren

    @olddawg – I’m in the market for a bridge or two.

  6. jordy

    Obviously seeking improper payments isn’t prohibited by the bylaw. Poor drafting, or not enough thought put into it.

    Not sure what “real world” Olddog is talking about. The real world I live in has upwards of 90% of lawyers never entering a courtroom and most legal work is done far away from them. If this somehow got to court (unclear to me how enforceable a collegiate athletic conference bylaws really are), whatever argument Olddog would advance to nail Cam or Cecil Newton would be dead on arrival. No court in the country would interpret this provision that way.

  7. HowMuchYouBench

    This is a very accurate interpretation of the rule. First blush, I was willing to accept that Cecil’s act of asking for money may have been sufficient evidence to show that he was agreeing to receive that sum of money if offered. But that’s not the way it works in the law. Law school and law practice have taught me that as well. Of course, a good lawyer can try to argue that various facts or interpretations could lend itself to the conclusion that Cecil “agreed to receive” money. But objectively reading the by-law, and applying the rules of contract law, means there would have to be an offer of money and an agreement to receive said money. Here, based on the facts as we know them, Cecil may have been soliciting an offer, but there there’s no evidence that the offer ever came. Hence, there can be no “agreement to receive.” It takes two parties for an “agreement.” The evidence is that there was only one (Cecil) ready to “agree.”

    Kristi is right, as much as I hate to say it – because I think the situation smells. But evidence is evidence and the rules are the rules, no matter how poorly they were written.

  8. franky smith

    thanks passed it on to some friends

  9. Sam

    Interpretation of rules, bylaws, and solicitation aside, The NCAA, SEC, and Cam Newton’s father have completely LOST THE PLOT on what college athletics is about.

    IF the NCAA stood by its OWN bylaws/rules, solicitation itself would deem Cam ineligible. Which would be unfortunate, because the guy is a fantastic athlete who hopefully has a bright future in whatever he decides to, NFL, LAWYER, Web Designer, etc. The point is that the corrupt system is unfortunately singling this situation out unfairly. If Cam was a mediocre player at a school that wasn’t competing for a national title, would they investigate so rigorously? College athletics, for maybe 80-90% (?) of students, is an educational experience and the NCAA supposedly preaches that. This situation is proving differently.

  10. Kristi Dosh

    Just to clarify, I’m definitely only talking about the SEC bylaw here, not the NCAA provision.

  11. OldGuyInCorner

    Is this the case? It is a matter of jurisdiction.

    The NCAA has jurisdiction over institutions, coaches, programs and players. The most severe punishments are given to programs where staff was involved. AU staff (as well as OK, etc.) were NOT implicated in recruiting violations. Miss. St. reported a possible violation (which it was) as they were supposed to do. The institutions, in this case Auburn and Mississippi State, were not only cleared, but given attaboys for their actions. Sorry if that hurts your feelings but is is the correct thing to do.

    There’s smoke! There’s fire! So where’s the punishment? Kenny Rogers & Cecil Newton violated criminal law. Mississippi has agent law on the books. Their punishment is there. So those that are encourage individuals all over the country to start shopping their kids – beware. Many district attorneys will not be happy, as their workloads are already too heavy.

    You want to punish Cam Newton and Auburn beyond the revocation of eligibility at Mississippi and the equivalent of restraining orders for persons of threat against their programs is absurd. You’re opening the door for third party actions to damage rival programs everywhere, because we all know – “the player doesn’t know.” If you want justice, you better start pressing for court (legal) action against Rogers and Mr. Newton instead. NCAA is not a instrument of law, just a private regulatory party for coordination of amateur collegiate sports. No matter how much you wish, you cannot expand their jurisdiction.

  12. Allie

    So basically I can go into a bank and “solicit” (aka attempt to steal)funds from them but if they do not “accept” my offer (aka give me all their money)then well…it’s all good :)
    Money did not change hands and I did not accept any money.
    Makes perfect sense to me.

  13. jordy

    the robbery and attempted robbery statute in your jurisdiction was drafted with much more care and existing precedent than the the SEC bylaws.

  14. Attorney explains why Cam Newton not guilty of violating SEC bylaws | College Football News, Opinion and Analysis | Chuck Oliver.Net

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