Lawyer: Waiver OK'd if Hawks relent

Updated: December 20, 2011, 7:30 PM ET
By Andy Katz | ESPN.com

Former Saint Joseph's center and current University of Alabama-Birmingham graduate student and practice player Todd O'Brien wrote an open plea on SI.com on Monday, stating his case for a scholarship release the Hawks refuse to grant.

O'Brien detailed that he has graduated from Saint Joseph's and wanted to use the NCAA's waiver rule to pursue a graduate degree at another institution that offered a program not available at Saint Joe's. O'Brien said he found a degree program in public administration at UAB, arrived in Birmingham in August and has been practicing with the team since October.

But the Hawks wouldn't release him, a condition for the waiver to be granted.

O'Brien's attorney, Donald Jackson, told ESPN.com on Monday night that if Saint Joseph's would grant O'Brien's release then "it could be immediately reopened by the NCAA staff in the morning and he could be eligible in the afternoon. We've already had that conversation with the compliance department at UAB and at the NCAA level."

The waiver has been used for years in both men's basketball and football with only one notable, but brief opposition. Former Northern Illinois coach Ricardo Patton and the university declined to support a waiver for former center Sean Kowal, before ultimately changing course in August 2010.

In a statement responding to O'Brien's story on SI.com, the school said, "Saint Joseph's University followed all applicable NCAA procedures and applied consistent internal practices in declining to support the requested transfer exception. Upon appeal, the NCAA legislative relief wavier team (initial decision) and the Division I Subcommittee for Legislative Relief (final decision) each reviewed the case and did not grant the requested waiver.

"Institutional policy and federal student records law prohibit Saint Joseph's from releasing additional or confidential information in this matter. As all eligibility determinations rest with the NCAA and not its member institutions, Saint Joseph's University has no further comment and considers the matter closed."

Saint Joseph's coach Phil Martelli wouldn't respond to numerous attempts to contact him by ESPN.com and Saint Joseph's athletic director Don Dijulia declined comment.

Jackson said the five-person committee that heard the appeal for a waiver request had one of its members excuse himself for a potential conflict of interest. The person on the committee was from Conference USA, in which UAB is a member. Prior to the hearing O'Brien's camp requested a replacement for the excused panel member. However, in a Nov. 15 email to Jackson, the committee said they didn't have an alternate member.

The committee needed a majority vote in order to grant O'Brien's waiver, but a 2-2 vote on the appeal would uphold the initial decision. Jackson said he was never told the final vote total after the hearing was held on Nov. 18.

Jackson, who has challenged the NCAA on a number of cases in the past, told ESPN.com he talked with Martelli about O'Brien and was told by the coach that "Todd was the most disloyal player he has ever coached."

Jackson added, "(St. Joseph's) didn't see him in the future in the program."

UAB coach Mike Davis said he has never talked to Martelli about O'Brien. Davis said he didn't understand fighting the waiver since UAB and Saint Joseph's don't play each other, aren't in the same conference and O'Brien only has this final season of eligibility remaining after starting his career at Bucknell and ending at Saint Joe's.

O'Brien averaged just 1 point and 1.3 rebounds in 7.2 minutes per game last season for a Hawks team that finished 11-22 overall and 4-12 in the Atlantic 10. He was also benched for a game against Xavier and the Philadelphia Daily News reported he was "peripherally involved with a laptop (theft) situation."

Saint Joseph's (8-3) is having a renaissance season with wins over then-No. 17 Creighton and its first win over rival Villanova at Hawk Hill.

"Quite frankly, I don't know why they won't release him," Jackson said. "The only conclusion I can make is that here is a guy (Martelli) on the (men's basketball) ethics committee who wants to make a point. This is beyond ridiculous."

Davis said Monday night that O'Brien has been practicing with the team and that the 2-6 Blazers "need him."

"He makes us a good basketball team and has been really good in practice," Davis said. "He's graduated. He doesn't hurt their APR. He's a smart kid. Saint Joe's doesn't offer his program that we do here."

Andy Katz is a senior college basketball writer for ESPN.com.

Andy Katz | email

Senior Writer, ESPN.com