"If we can convince the NCAA that the most reliable and credible evidence out there suggests that he did not play (semi-professional football) after his 21st birthday--and they certify him--that’s the best thing for Mike," attorney Woody Glass said, "And that’s what I'm trying to get done now."
Glass said he hoped resolution before the Sooners' season-opening game Sept. 5 against Brigham Young, and that he felt he had an agreement from the NCAA to expedite the process.
“This is all subject to these committee members being available, having all the information and getting on a conference call,” Glass said. “We are working to get dates set. My hope is that we never have to go to court because they certify Mike and he finishes out the season and we go on down the road.”
The NCAA decertified Balogun Aug.14 in the belief that he participated in a North American Football League game after Sept. 28, 2004--citing evidence that likely would not be admitted in a court of law vs. sworn affidavits on Balogun’s behalf to the contrary.
In the interim, Glass said he preferred to keep the case out of court after he subsequently obtained a temporary injunction allowing Balogun to continue to practice until final dispensation. Glass said he felt confident that he could obtain a permanent injunction to allow Balogun to participate, but that he expected the NCAA would appeal. And if that appeal was lost, that Oklahoma could be forced to forfeit any game in which Balogun participated.The NCAA has that option under bylaw 19.7. An Ohio court, however, recently struck down that bylaw in a case involving Oklahoma State pitcher Andrew Oliver, who sued the NCAA to regain his eligibility in a similar case.
“The Bylaw is overreaching,” Erie County Common Pleas judge Tygh Tone wrote. “For example, if a Court grants a restraining order that permits a student-athlete the right to play, the institution will find itself in a real dilemma.
“Does the institution allow the student-athlete to play as directed by the Court’s ruling and in doing so face great harm should the decision be reversed on appeal? Alternatively, does the institution, in fear of Bylaw 19.7, decide it is safer to disregard the Court order and not allow the student-athlete to play, thereby finding itself in contempt of court.
“Such a bylaw is governed by no fixed standard except that which is self-serving for the Defendant (NCAA). To that extent, it is arbitrary and indeed a violation of the covenant of good faith and fair dealing implicit in its contract with Plaintiff (Oliver) as the third party beneficiary.”
Glass conceded the process with the NCAA will take some time.
The way I understand the process is that there has to be a submitted proposed finding of fact that the NCAA investigator will prepare with the input of OU and myself,” he said. “If we can agree on some finding of fact, it will further expedite the process. It just depends on what they initially propose to us.
“Obviously, we’re going to be in some dispute on the facts. But if they couch it in a way that, ‘Well, this guy has said this,’ rather than that being a fact, I could probably work with that a little bit.
“For example one of his (former NAFL) assistant coaches (Charles McGriff has stated in an unsworn statement that Mike played after his 21st birthday. I can live with that as a proposed finding of fact because that is a true statement. But to make that leap to say that (because of that statement) he played after his 21st birthday, I don’t agree that that’s true.”
Assuming the parties cannot reach agreement on findings of fact, the case will go to an internal appeals committee within the NCAA, then to the amateurism committee that has final word.
Glass said he has proposed to appear before the amateurism committee, but that would be an exception to procedure.
-- Mike Jones
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