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The letter from Paxton's lawyer Add to ...

A letter written by the lawyer for James Paxton, and released publicly, following the Canadian pitcher's departure from the University of Kentucky this spring.

By Richard G. Johnson (issued March 2, 2010)

In light of UK's decision to issue a press release Friday evening, I feel compelled to explain this sad state of affairs, none of which would be occurring, if UK was not scared to death of the NCAA.

UK's fear of the NCAA has resulted in UK withholding James from intercollegiate baseball competition, when there are no allegations or evidence against him, when he is eligible to play, and when UK admits that it cannot compel James to speak to the NCAA. This fear is based upon the unsupported supposition that someday allegations would be filed against James predicated upon some unknown set of facts that would result in some unknown NCAA retaliation down the line.

As everyone knows, James turned down a lot of money from the Toronto Blue Jays to come back to UK to play with his teammates and for his coach with the hopes of reaching the post-season and the possibility of winning the College World Series for the Wildcats.

The past several months have been very challenging for James and his family as well as for his teammates and coach. To the many who have stood by him, he is forever grateful for their support.

Much has been speculated about why the NCAA wishes to interview James, even though UK admits that it does not know, and this speculation has focused on a single, unverified blog entry, which is vague at best. However, the implication is that James' attorney violated the NCAA's No Agent Rule, which attempts to limit his attorney's representation of him, and which would be held invalid in Kentucky, if James were ever charged with such a violation - just like it was held invalid in Ohio in the Oliver v. NCAA case last year. The NCAA's presumptive penalty for a No Agent Rule violation is permanent ineligibility, and not six games or the like that has been bandied about as a possible sanction for such a violation.

Some people wonder why James won't just go to an NCAA "interview," if he has nothing to "hide," so let me tell you why: First, at UK, students have due process rights under its Code of Student Conduct, faculty have these rights by Kentucky statute, James' coach and the athletic director have these rights via their lucrative contracts, and UK has these rights via NCAA Bylaw 32, which affords it the rights, when it is being investigated, that it has ironically denied to James. In addition, all of these persons have the rights guaranteed by the Kentucky Constitution. However, James is being denied these rights. Indeed, despite making massive profits on the backs of student-athletes, the NCAA provides no due process protections to student-athletes like James; second, what the NCAA cloaks as an "interview" is in reality a prosecution and execution by ambush without notice of what the subject matter will be. On top of that, the NCAA sometimes relies on confidential witnesses, dubious so-called "evidence," like blogs, without any standards for credibility or weight, and so on.

The NCAA acts like an unscrupulous bully by doing essentially whatever it wants without regard to the rights of student-athletes; third, at the end its prosecution and execution of a student athlete, the NCAA does not even have to put its reasoning or the alleged violations in writing to James.

With absolute power over the athlete - as the UK AD put it, "the NCAA holds James' life in its hands" - the NCAA is completely unaccountable to student-athletes; fourth, the schools like UK, which described itself to James as just the NCAA's messenger, are forced to do the NCAA's dirty work. Under NCAA rules, only UK can suspend James, and all suspensions are indefinite by definition. Indeed, UK indicated to James back in September that, if he went to the NCAA "interview," he would be suspended - even though UK said that it did not know why. Thus, James has already been told going to an interview means suspension, and under NCAA rules, the suspension is indefinite and possibly forever; fifth, in December, James was told by UK that, if the interview was about the No Agent Rule, and if James went to the "interview" and asserted his attorney-client privilege regarding his communications with his attorney, it would be interpreted as not cooperating, and he would be suspended. In fact, UK told James that the NCAA bylaws superseded his right to have confidential and privileged communications with his attorney, which is mind-boggling. In a nation built upon due process and equal protection, the NCAA's refusal to respect student-athletes' right to counsel is staggering; sixth, once suspended, only the NCAA can reinstate James, and it can impose whatever penalties it wants as a condition of reinstatement. James has no right to even seek his own reinstatement, and only UK can supposedly "represent" him on reinstatement, subject to whatever position regarding his future it decides to take, even if James disagrees with it. Thus, in layman's terms, the NCAA has banned James from having any individual right to appeal, so it can do whatever it wants to him, and he has absolutely no recourse of his own; and seventh, UK, which is beholden to the NCAA, scared of the NCAA, and the self-described messenger of the NCAA, stated in its press release that it is "disappointed" that James is unwilling to go through "the normal NCAA process." This is astonishing, because in a civilized society, the "normal NCAA process" is hardly normal and is about as un-American as it can get. Hypocritically, UK and the other NCAA members do not believe that such a process would be fair to them, since they have negotiated their own due-process protections that apply to them, when they are investigated by the NCAA.

James' lawsuit against UK was a civil rights case under the Kentucky Constitution, where he challenged the denial of due-process rights to student-athletes, yet the circuit court did not even discuss the merits of this challenge. Likewise, the court of appeals did not analyze or even discuss any of the specific arguments advanced on James' behalf, and, instead, it blamed James for this situation, which was hardly of his own making.

While James could have sought discretionary review in the Kentucky Supreme Court, any such review, if at all, would most likely have come long after the baseball season was over, thus making the effort a futile one, all the while leaving James in limbo during the remainder of the season.

At some point, James believes you have to stand up for what is right, and James has decided to do so by taking a leave of absence from the university. James understands that his life will be defined by his principles, and he is making a heartbreaking sacrifice to stand up for what he believes is right. James is a wonderful young man with a bright future, and he will emerge from this process stronger and wiser than he was before.

I look forward to that day very soon, when I will be able to see him pitch in the Major Leagues.

In conclusion, James apologizes to his teammates and coach, who are stuck in the middle, just like he is. James wishes his teammates and his coach a successful season, and he will be there in spirit cheering them on. James is and always will be a Wildcat at heart.

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