No Bowl Ban in 2011 - did Smith make the right decision?

baddogmaine's picture
October 12, 2012 at 8:04p

SPOILER ALERT: This is about the past. 11W staff writer Jeff Beck tossed out a question in one of his columns and I think it deserves a discussion of its own. If the past does not interest you then don't read this blog. Nothing is gained by you adding yet again that the cat is dead. Some of us like to analyze.

SPOILER ALERT #2: This will be a long post. It is being offered as a blog so that it can be long. If reading long posts tires out your brain then don't read, but nothing is gained by adding a comment saying nothing more than that this is too long.

And now on with the show. I'll start with something other than football. It is relevant, bear with me.

I'm a criminal defense lawyer. Most people who are not lawyers think a lawyer's job is to be devastating in the courtroom. Not true, at least in criminal defense. No less than the United States Supreme Court recently observed that often THE most important part of defense is plea bargaining - trying to come up with a lesser charge and/or a lower sentence that will be acceptable to both the prosecutor and the client. Giving something, but getting something in return. The part that goes with this is giving clients good advice so they know whether what seems like a big punishment is big or small compared with what else is out there, and what the likelihood of various outcomes really is.

So to give an example, in Maine where I practice law drunk driving (OUI) is an offense with a maximum possible sentence of 364 days, a minimum of zero, and anything at the ends or in the middle within the discretion of a sentencing judge. Typically drunk drivers get sentences of zero to three days for a first OUI conviction. Getting the maximum 364 days for a first offense OUI is theoretically possible but in practical terms almost impossible. On the other hand, getting a sentence of zero days upon conviction for a first offense OUI is pretty common but no one having been found guilty after trial of an OUI should assume that 2 days will be the max - leave it to the judge and you're at the judge's mercy. My biggest job as a lawyer is to look at my client's facts, the trends in sentencing, the judge who is going to have the power, the prosecutor I will be negotiating with and other intangibles and then  first tell my client the chances of walking away by winning at trial, and then to tell him what I think is both likely and - just as important - possible if he loses. I'll typically say that  in my opinion you have a chance of x% of no jail time, chance of y%  of getting sentenced to two days or z% of four days or w% of 14 days. For most clients there is essentially no chance of 6 months, but if the client had been not just slightly over the legal limit but totally shitfaced with a bad driving record behind him and had passengers in the car with him he scared out of their wits and nearly ran over pedestrians and who was saying that he would never stop drinking and the judge could go f*** himself I'm going to say that 6 months is not out of the question; three months is likely; and the 14 days the prosecutor is offering is a really sweet deal. I need to give both the likelihoods and possibilities so that my client can decide whether the possible gain from going to trial outweighs the possible risks from losing, with gain and risk measured by what is most important to the client.

I also tell my clients that judges like to see people accused of crimes accepting responsibility. A person who admits that he was drunk and driving is more likely to get that zero day sentence; a person who minimizes his conduct is more likely to get 2 days or more to teach the lesson of the value of  personal responsibility.

For some clients the deal never gets good enough - those go to trial. For some clients keeping an OUI off the record is priority #1, and for them I see if I can get the district attorney to change the charge to Driving to Endanger (considered a lesser offense) with maybe an extra day of jail. Others want to stay out of jail, and I then don't fight with the State over the charge but the sentence. I tell this kind of client who is thinking of going to trial that there is a theoretical possibility that a judge might give no time at all if he loses at trial and I also tell him when appropriate that that possibility is very very unlikely and that if priority #1 is no jail then best bet is to plead guilty to the OUI for the agreed on deal of no jail time. Give up the chance of walking away without a conviction for the near certainty of staying out of jail by accepting responsibility.

That in a nutshell is the job of someone trying to minimize the damage to a client at risk. In 2011 the client was Ohio State's football program. Its advocate was Gene Smith.

We were not facing a death penalty. That's the full 364 for just an OUI. But some bad things were still a possibility. I have heard it said that a bowl ban had never been handed out for just a Failure To Monitor. Perhaps. But it has been a long time, if ever, since the NCAA had been dealing with a school already on probation where minor and less-minor infractions were rampant, where the coach clearly lied to the NCAA, where the school president knowing about the lies said that he hoped the coach would not fire him, and the AD trying to satisfy the posse he knew was on its way offered . . . essentially nothing. Almost no acceptance of responsibility at all. This was Smith telling the guy who was in deep trouble that he didn't need to worry. Smith may have been working with a possible, perhaps even a likely, but he was not advising his client of a much worse outcome that was very much in the picture.

So. Smith's first question was: is a bowl ban at all possible? The answer on our facts was absolutely YES, regardless of what had been done in the past. The accompanying question is: how likely? That answer is unknown, but definitely more likely than zero%, probably more likely than 33%; quite possibly in the 50% range if not higher.

So what were OSU's risks and needs in this case? Obviously we wanted to be allowed to walk away untouched. That was about what Smith offered and it wasn't happening. At this point let me switch analogies, from the courtroom to the ocean. OSU is a weak swimmer and a shark is approaching. Shore is too far away to escape completely. What do we do? If we let the shark have its will we will not be happy with the outcome. We'd rather not give up a hand but the shark doesn't look all that hungry, it just wants something and maybe a hand will be enough. The hand was a bowl ban of our choice.

If we banned in 2011 our 2011 seniors would lose out on a  bowl. The seniors of 2011 included guys who contributed to the problems we were in. It also included Joe Bauserman who had been as loyal a Buckeye as ever put on the Scarlet and Grey - playing behind Pryor, as a senior having his job taken from him and given to a freshman with narry a peep - and no one has ever suggested that the 2011 team deserved a bowl to reward JB. Trying to hold on to a bowl in 2011 was never really about deserving seniors, it was about the possibility of a win and the opportunity for fans who could afford it to get a vacation.

It was also the possibility of a loss. The 2011 team by the end was a train wreck (anyone need to watch the end of Purdue again?). There was nothing to be gained by a bowl game that year. People talk of a *bowl game* as if it is some holy grail. The Gator Bowl is nothing OSU aims for. Ever. For a school such as Indiana that is a step forward, but for tOSU? don't kid me. Every year our goal is the NC. Short of that we'll take a BCS game. And even the Capitol One or Outback has some prestige. But are we really arguing the merits for Ohio State of the Taxslayer Bowl? So that we could - and did - end up with a losing record?

I have read one person say that we didn't really know that 2012 would be better than 2011. In the sense that nothing is guaranteed then true. But in the sense of trying to evaluate possibles and likelies it was as close to a guarantee as possible that 2012 would indeed be better than 2011. New good head coach, new good assistant coaches, good players a year older, good coach's new recruits, new attitude and hopes. Maybe not 12-0 better, but competing-for-the-B1G-and-the-Rose-Bowl better was not a smoke dream.

Also, a team that goes bowling gets extra practices. Should those extra practices go to the Fickell-lead 2011 squad or the Meyer-lead 2012 squad? I thought so.

To summarize so far. A bowl ban was more than a remote possibility, it was in the realm of the being-considered. And if we have to give up one bowl 2011 is better than 2012.

Which brings us to the $64,000,000 question: how do we know one game would have been enough? We don't. But I know from experience that offering to accept a sentence with some substance is more likely to satisfy a judge than minimizing what you did when you have some reason to believe that the judge is not happy with your client.  And if you take Smith's position that a bowl ban is not likely at all then you have to agree that one game will be enough. One game can not be both too much and too little. In Smith's world it may be too much, but it is not too little.

It has been said that the NCAA hates OSU, or at least wanted to make an example of us. I think this has a bit of paranoia about it. Even for the NCAA the punishment has to fit the crime at least somewhat. An OUI will not get 364 days. Except in the worst cases it will not get 6 months, or even 3 months. You want to avoid being a worst case? accept some responsibility. Self-impose punishment that says the school is taking the matter seriously. Have Gordon Gee grovel. Find other bones to throw. Our facts were bad but they were not PSU bad. The NCAA was happy (so far) with Miami's one-year self-imposed ban. The NCAA was not going to hammer us just for being us - had we done reasonable things the NCAA might have played with the amount of the fine or what we needed to do while on probation but it would not likely increase the big punishment.

What are the risks of self-imposing a 2011 ban? That we might miss 2012 too. In which case we lost something - the Taxslayer and a losing record - that should not have had great value to OSU fans. This is a subjective judgment I know, but I think that a Taxslayer Bowl and a losing record do not give most OSU fans a feeling of accomplishment.

What are the possible gains of a 2011 ban? That it *will* be enough and the 2012 team gets to go bowling. Obviously now that we are 6-0 and with 12-0 and the Rose Bowl if not the NC not out of the question it is easy to say we wish we could play in December or January this year. But we should have been saying that last year. Even if we could only predict improving to 8-4with our rabid fan base 8-4 would probably be good enough for something better than a Taxslayer Bowl and depending on who the losses were to and what else happened in the B1G we might still be in the Rose Bowl. However 2012 played out a bowl this year would be no worse thamn and likely  better than the bowl we got in 2011. And the cost of preserving the chance of getting that bowl was a hand if you still think that a Taxslayer in 2011 had value, and less than a hand if you agree with me that that bowl in 2011 was pretty worthless.

And as it happens we are 6-0 and being talked about in the NC conversations had we not been banned this year. Can't argue what we should have done in 2011 based on what we actually are doing in 2012, but still . . .

I have just presented my case for Gene Smith as grossly negligent in representing OSU's interests. No debate is iron-tight, arguments can be made on the other side.

Defenders of Gene Smith, the floor is yours. If you want to argue precedent give the sanctions imposed and the significant facts.

Comments Show All Comments

Brutus Forever's picture

What's to say the NCAA wouldn't have imposed a bowl ban this year if Smith imposed one last year? it is conceivable that Smith could have banned OSU from the postseason last year and the NCAA could have still banned us this year. The argument that we shouldn't have played in a bowl last year because of the potential for a losing record is weak. On the other hand, perhaps Smith imposing the bowl ban last year would have made us look more favorable to the NCAA, and then maybe they wouldn't have come down as hard on us. But according to the OSU employees I know working with the football program, the NCAA has been looking to hit OSU since 2002 due to the off-field issues involving the program back then. For this reason I think OSU gets an additional postseason ban by the NCAA regardless of Smith self-imposing one last year. However, like you pointed out, with OSU being 6-0 there is now a nontrivial probability OSU runs the table and ends up in the NCG. I think by season's end they wouldn't be ready for that game defensively against a top-caliber SEC opponent. But next year, I truly believe they will be ready for that game. Urban starts off his OSU career 26-0. That's my prediction :D

"I learned to dislike Michigan at a very young age.” – Urban F. Meyer

Brutus Forever's picture

(ends up in the NCG this year if they weren't banned, to be bad!)

"I learned to dislike Michigan at a very young age.” – Urban F. Meyer

ShowThemOhiosHere's picture

Yeah, you never know.  EGG has said that it would not have mattered if we had self imposed a bowl ban last year, and we'd still have been given one this year.  Gee hasn't always been one to say brilliant things when it comes to college football, so who knows. 
I always thought it depended on when the self imposed ban came.  If you do it before the season, or even right after the Indiana game when we became bowl eligible at 6-3, then maybe it matters more, because before the season we thought we'd have a better team than what we had, and at 6-3 we were in the hunt for the Big Ten championship.  If you do it after the regular season at 6-6 or early on when we were 3-3 and looking bad, then it doesn't matter as much becasue the bowl we'd get would be crappy.  I don't know, maybe the idea that it wouldn't have mattered makes sense.

Class of 2010.

BROSEPH's picture

Would people be talking about this if OSU was 3-3 right now? Probably not.  Hindsight.  

NW Buckeye's picture

BadDog, You are comparing apples to oranges.  I know that we all like to compare circumstances to our daily lives, but there is no comparing NCAA rules/penalties/logic to anything we experience on a daily basis.  I do not know what the NCAA was thinking, but I do know that they do not allow for "due process".  This is what most of us are used to in our daily lives.  Gene Smith sat on the infractions committee, he employed firms that had experience in dealing with the NCAA, he consulted coaches at OSU and other schools to try to get a feel for what the NCAA might do.  His best guess with all that input was not right.  We will never know what would have happened if we had self imposed a ban last year.  It could very well be that a self imposed ban last year would have been sufficient, it could very well be that it may not have been sufficient. 
I would prefer to look at this as more of a civil court negotiation than a criminal court decision.  Although you are somewhat at the mercy of the judge in a criminal court, there are distinct guidelines for them to follow.  And for the most part, an atty, like yourself, can get a pretty good feel for what to expect from a given judge.  Civil cases that are arbitrated present a different scenario.  Each side asks for the moon and the final decision ultimately lies somewhere in between.  An example of this on the NCAA level might have been USC going against the NCAA - their attitude was "we did nothing wrong - no self imposed penalties."  The NCAA slammed them.  OSU stepped up and took the stance of self imposing penalties and got an additional one year ban.  There was no guarantee that if we self imposed more penalties that we would avoid harsher penalties from the NCAA.   Indeed, other schools that were in similar FTM situations (Boise State for example) managed to avoid a bowl ban all together. 
With hind sight is is very easy to say "Heck yes we should have self imposed a bowl ban last year."  But, the reality of the situation is that no one could guarantee that the NCAA would not have added to our penalties (whether bowl ban or something else) had we done so.  This is not a criminal case where your options of accepting a plea are distinctly laid out.  It is at best a crap shoot. 
Debating this almost seems moot at this point.  It would sure be nice if the Buckeyes could go bowling this year.  I'm sure the coaches and players would much have preferred that.  However, what is done is done.  I don't believe Gene Smith acted irresponsibly.  I am not a Gene Smith fan one way or the other.  But, I do know that he and OSU consulted a lot of people "in the know" before they decided on their course of actions.  Also, keep in mind that the self imposed penalties were presented to the NCAA early in the season.  And, the NCAA did not impose additional penalties until mid December - after Urban was hired.  Heck, even Urban consulted many people (besides the OSU athletic staff) and was very comfortable with the self imposed penalties.  So, if you want to criticize Gene, you may as well throw Urban under that bus as well. 

baddogmaine's picture

Whether a lawyer should ask for the moon depends on what such a request might result in. Perhaps a civil litigator can do that, but no competent criminal defense lawyer should ever ask for a sentence that has almost no chance of being accepted unless only the most lenient matters to the client and above that a week may as well be a year. The reality in criminal defense is that judges faced with a reasonable assessment of a person's culpability are more likely to accept it or at least come close, whereas a judge presented with an unreasonably forgiving assessment of culpability is more likely to punish more severely. There is no formula for determining what plea bargain gets accepted - judges (in Maine anyway) have great discretion to do anything within the permitted range. The lawyer must evaluate responsibly: what the case deserves combined with what the judge is likely to do combined with the client's needs should influence what is offered or asked for.
I have never said that the NCAA follows anything like strict Due Process. But it does have a code that it follows, and that code is known to all ADs. That code is something like the discretion a sentencing judge has. Though I have never appeared before the NCAA and do not pretend to be an expert on all that it has done I suspect that it acts like a judge at a sentencing - evaluate what the accused did, evaluate to what degree the accused has accepted responsibility, factor in the accused's past record, look at sentences for similar conduct and the deterrence potential of various options and do something that will uphold the "integrity of the process."
What happened to USC is exactly my point about how the NCAA responds to asking for the moon. By not accepting any responsibility USC got whacked. What happened to OSU also supports my point. In my opinion offering nothing but fines and minimal scholarship reductions was not an acceptance of responsibility. We did not offer to refund the money from the bowl game until late in the process, and refused to face up to what to do about JT until long after it was pretty clear that he was going to have to go. We never did offer a bowl ban. Our offers to the NCAA were never "reasonable" because they always minimized our culpability. I don't *know* that had we offered a ban for 2011 that would have been enough, but it would have been a serious offer and I think the NCAA would have accepted it.
NW  Buckeye is not saying exactly that a one year ban would not have been enough, because in fact it was - that was what we got. What NW is saying is that the NCAA would have felt that a ban in 2012 specifically was the right penalty and we would have gotten that even had we self-imposed for 2011. This is a possible position to take but I need to hear why the NCAA would have been focused on 2012.
Whatever that data says about a 2012 ban there were risks and gains from all options. We chose the "ask for the moon" option that let us bowl in 2011. Unless you think the Taxslayer bowl and the chance to finish 7-6 rather than 6-6 was a valuable asset then that option had little gain attached to it. Had we self-imposed for 2011 the possible gain was winning the B1G and a bowl game in 2012. That gain far outweighs the other.
 This kind of analysis is what a lawyer representing a big-time client in trouble has to do. I have no evidence, other than fan's willingness to give Smith the benefit of the doubt, that he did all that responsibly.
Whether this is moot depends on whether OSU is likely to get into trouble with the NCAA again. If not, then it is moot. If so - and I think at a school as big and competitive as OSU it is inevitible -our AD needs to be able to respond to the accusations in a way that minimizes the outcome better than he did this time.

johnblairgobucks's picture

I don't believe OSU hires passive people for positions that require institutional decisions.  If Smith believevd OSU wasn't deserving of a Bowl Ban, I can't blame him for not offering one up. 
If a lawyer believes his client is genuinely innocent, he wouldn't get good client reviews, if he advised said client to accept a 90 day jail term, when thought innocent.

baddogmaine's picture

If a lawyer believes his client is genuinely innocent, he wouldn't get good client reviews, if he advised said client to accept a 90 day jail term, when thought innocent.

As a statement about what a lawyer does you're just plain wrong. In evaluating a case it does not matter whether I think my client is innocent, and in evaluating a case it does not matter whether my client says that he is inncent - my advice is based on my necessary evaluation about what a jury is likely to do, and if the jury convicts what kind of sentence a judge is likely to give. I just handled an appeal for someone who insisted that he did not commit the murder he was convicted of but who was saying that had his lawyer ever bothered to plea bargain he would have taken a 40 year sentence that permitted deductions for good behaviour to avoid the life sentence with no deductions and no parole he got because his lawyer didn't look responsibly at the risks. If you want to give Smith a free ride because you believe that by definition someone hired by OSU to serve his position must be infallible then so be it, but I maintain that an advocate in his position could not possibly have looked at the OSU situation and dismissed as insiginificant the rsk of a bowl ban. Lots of people charged with crimes they did not do willingly (if not happily) do jail time to avoid something worse; a school in OSU's situation minimized what might happen to it at the cost of getting something worse.
Though I happen to think that Smith is not capable generally this is not an argument that he is generally unfit to serve - even good people can have bad days. I think how he handled the sanctions we are now under was a very very bad day for Smith that turned into a worse-than-necessary outcome for OSU.

johnblairgobucks's picture

so you are saying that if the lawyer and the client both believe that no wrong was done, they should agree to do jail time instead of trying to absolve themselves, simply because they don't feel the jury will absolve them?  I'd say, if there was strong enough reason to believe a jury would find you guilty, then you wouldn't feel 100% that no wrong was done.  OSU felt that they were in no danger of a bowl ban (it was said, after much research, that it would have be unprecedented), so why would you offer one up?
Also, laying the blame for the Bowl Ban at Smith's feet is silly, when the whole Big Fat Mess was brewed up in Jim Tressel's kitchen.
Hard not to think Smith did well to take that mess and then land Urban Meyer as coach.

baddogmaine's picture

The mess was brewed up in JT's kitchen, but it was Smith's job to clean it up. If he did a good job give him credit; if he did a poor job he indeed gets the blame. In my vfiew Smith did a mixed job - great in landing Meyer, horrid in giving Meyer a bowl ban for this year.
Once someone  is charged with a crime that person is in damage control. Guilty pleas by someone insisting on his innocence but who understands that a jury is highly likely to find otherwise, and concerned that a sentence following a losing trial is very likely to be worse than what might be negotiated with a prosecutor in exchange for a guilty plea are so common they have their own name - Alford pleas.
I'm happy to discuss criminal defense practice and philosophy as long as it explains my view of Smith's performance, but talking in the abstract about what goes into attorney-client communications and how the criminal process works is outside the scope of Eleven Warriors.

RBuck's picture

Gotta disagree Baddog. To me the mess come from Posey's kitchen. If it wasn't for the DiGeronimo thing, there would be no FTM and thus no bowl ban.

Long live the southend.

buckeye.33's picture

Stupid post. No one in their right mind would self impose a bowl ban. 

ek68's picture

BADDOG, very interesting remarks & good read. I still believe the decision Gene Smith & OSU made in regards to their response to NCAA on providing their self imposed sanctions were based on not only on what OSU decided but if not mistaken also the legal advice (paid for) believed were the correct based on previous decisions & cases that were available. I still contend, the NCAA had to make a statement. I mean you have to take in account every media source (reporters & such) were calling for heavy hits to OSU. My gosh you could go a day without some article or report calling for OSU's head. I'm not a lawyer or expert on law but my question would be if a judge frowns on drunk driving and will use his position to hit even the first offenders hard (if law allows) you would try everything to get a judge who is more favorable yes? You would not get that with the NCAA. I still contend OSU, no matter if they put in bowl ban for 2011 would've made a difference.  Just my opinion. Thank You.




Poison nuts's picture

This comment is not to discount your post, which is well thought out out & smartly written, but for me, the topic is akin to a spilt glass of milk. Who spilt it? Why did it spill? What damage did the milk do once spilt? My point being that what happened, happened & all the discussion in the world won't change the fact that 2011 happened & is now over. Could things have been done differently? Absolutely! Would it have made any difference in the NCAAs decision? Nobody will ever know. My thoughts are that a bowl ban was likely coming & if we had self imposed one, I think it would have been too little too late. Shouting to anyone who would listen that we definitely weren't getting one was propably not the greatest move either...But regardless, I don't know for sure what could have been done to make things different/better so this is one situation I've put in the past, excepted & have moved on...I'm happy my team is winning. I'm happy they keep getting better. Right now - that's all I can ask for. That old milk is long gone & I'm all out of tears.

"Do not pass me, just slow down - I can move right through you" Superchunk - Precision Auto.

BuckeyeVet's picture

@Poison Nuts - I always enjoy your well written & thoughtful posts. And I agree with 95% of what you just wrote. The only caveat I would add, is that we (cliche coming) have to learn from the past or will be doomed to repeat it. So.... God forbid...... if we ever find ourselves in the NCAA crosshairs, maybe we will make better choices in the future by keeping this in mind. Go Bucks!

"Outside of a dog, a book is a man's best friend. Inside of a dog it's too dark to read."          - Groucho Marx

"The recipient of Oyster's ONLY down vote".

Poison nuts's picture

Thanks Vet - appreciated & absolutely I would agree that hopefully a lesson was learned...and hopefully what was learned will never have to be put to use!!

"Do not pass me, just slow down - I can move right through you" Superchunk - Precision Auto.

Oyster's picture

Shoulda, Woulda, Coulda.  It is summed up best above when asked would this be discussed if OSU was 3-3? 
Bottom line, the school made a calculated decision based on past practices for similar infractions.  They rolled the dice, and it came up Craps (I don't gamble, but I think that is the appropriate term?).

"Scrolling hurts my finger"

(and FitzBuck was clearly the winner)