Ref: BanditRef
It is hard to put into words the difference in how people feel about the NCAA from this year to last. Last year most college sports fans feared the NCAA. You never wanted the NCAA to be on your schools campus. The thought was the NCAA was a hard master, and that if you got their attention you could expect to pay for it. Any team who had previously fought the NCAA only made punishment worse for themselves. Any player who fought them risked not only just a season but an education and a career. We took for granted what this state of worry and fear brought with it. College sports have never been clean. Never. However, there was a solid belief that if you cheated sooner or later it would catch up to you. This belief is what drove schools to sit players and report themselves to the NCAA. Scandals came and scandals went, the judgments and punishments were not always equal. But judgments and punishments came.
So what is college sports fans current opinion of the NCAA? It is a joke. Most believe that the NCAA is the puppet of the conferences and the BCS. They think that they amount of money a school can provide for the BCS and NCAA plays a large role in how they are treated. And they are not wrong. They feel the NCAA's judgments are full of flaws in logic. They're rulings are simply construed and changed to suit the outcome those who stand to make a profit would prefer. This is 180 degrees from where we were a a few months ago. What changed? How can an opinion change that much in such a short time? Heck, not even a year, this opinion changed from September to December.
In September the NCAA was moving as usual. Coming down on North Carolina causing them to sit 12 players for the LSU game. Several players were even removed from the team. Georgia's A.J. Green was found to have sold a jersey and had to sit out 4 games at the start of the season. Alabama's defensive end Marcell Dareus, MVP of last years BCS Championship game was suspended for the first two games of the season. Business as usual. Teams found players and coaches breaking rules. Teams reported it to the NCAA. Teams and the NCAA made decisions on punishment; the season moved along.
Then something happened. On November 1, 2010 Mark Emmert assumed his duties as president of the NCAA. Mark has only been the president of the NCAA for two and a half months. In that short time he has managed to do more damage to the NCAA, and college football than any other person in recent memory. The only modern equivalent would be Reggie Bush. But USC was punished for the Bush fiasco by the NCAA. So as much damage as Bush did, it is somewhat contained by the fact that in the end his cheating didn't help anyone. It certainly didn't help USC who is now on probation and been stripped of titles and wins. Since the beginning of his reign Mark Emmert has worked hard at pushing aside all those unprofitable ideals like morality, right and wrong, and fair play. He has focused on more attainable goals like money, profitbality, and public relations.
On November 4, 2010 the Cam Newton saga began. Over the course of the next few weeks we learned that Cecil Newton, Cam's father, had asked Mississippi State boosters for $180,000 for his son. We also learned that with Cam Newton Auburn was a great football team and had a real shot at a national title. The NCAA ruled that Cam could continue to play based on the fact that he claims he had no knowledge of his fathers actions. Most people were shocked. If that wasn't a violation what was? If you are unfamiliar with what happened in the Cam Newton case find out more at The Cam Newton Saga Timeline. Although we don't know how anyone could be unfamiliar with what happened.
In December things continued a downward spiral. Five Ohio State players including Star Quarterback Terrell Pryor were found to have sold various items of memorabilia. Including gold pants charms, awarded to Ohio State players for beating Michigan, and ironically Pryor's Good Sportsmanship Trophy. The players told the NCAA that they had sold the items but didn't know it was wrong to do so. This, after the NCAA had earlier this same season suspended A.J. Green for selling a jersey. Ohio state with the largest compliance department in the country had apparently forgotten to let them know that was wrong. So the NCAA suspended the players for 5 games. The first 5 of next season. Allowing them to play in their bowl game, a BCS bowl against Arkansas. Some of these players are juniors and will inevitably enter the draft. We don't care what Jim Tressel says about it , its going to happen. They will escape any punishment. Ohio State, who apparently doesn't inform their players of much, will receive no punishment at all. Sports writers, fans, and coaches were shocked by this development.
Oh but Mark isn't done yet. On January 8, 2011 Enes Kanter of the Kentucky Wildcats was ruled permanently ineligible. He was a kid from Turkey who had played professionally for a time in Turkey. He was however highly recruited here in the states. There is some question as to whether or not he could be termed a real professional. As most of the money he made in Turkey went to paying for his education. Kenutcky argued this along with that fact, and this is important, that Kanter didn't know the rules when he was in Turkey. Based on recent NCAA decisions you would expect a ruling that Kanter would have to sit out a certain amount of games, and then could play. But no, he is ruled PERMANENTLY ineligible. So what was the major diffrence in this case? Perhaps it was that Kanter originally commited to the University of Washington. Mark Emmert's school, and where he was president before coming to the NCAA. It seems where you pick plays a role in descions too. Read more on this joke of a ruling and Emmert's hissy fit reaction here.
If you are thinking to yourself that perhaps Emmert simply doesn't know whats going on. Perhaps he is just an idiot. We encourage you to read this article. Emmert knows what he is doing all too well. He is destroying the NCAA from the inside out.
So why is this a crisis? Sure, its a bad thing that the NCAA is being ruined, but what is the big deal? Aside from the obvious affects it will have on college sports. The universities that comprise the NCAA receive tax payer dollars. The NCAA is a non-profit organization. If the NCAA is more focused on the well fare of the BCS and the conferences than the well fare of the student athletes then we have a problem. The NCAA says its rulings are for the benefit of the athletes first. They are not. If the NCAA wanted to be fair to the athletes first it would hold everyone to the same standard. By changing the rules to help the certain conferences and universities make money they are in effect hurting the other schools in the NCAA. To help only some hurts the others. The NCAA was created to keep the big guys from taking advantage of the little guys. It has now become a tool of the big guys against the little guys. And this tool not only doesn't pay any taxes. It receives money from Universities that are supported with our tax dollars.
So what can anyone do about it? Well a lawyer named Joe Shell Jr. has gone to congress about the NCAA. Link He wants congress to look at the guarantees the NCAA made in 2004. Stating they would be fair and impartial. He wants congress to remove their tax exempt status. So what can you do? We have created an online petition. If you follow the link and sign the petition it will help let congress know where we as college football fans and Americans stand on this issue. Lets not sit back and watch the big guys destroy our college athletics system. Sign the petition and tell congress to listen and investigate.
SIGN THE PETITION
Friday, January 14, 2011
Tuesday, January 4, 2011
Ten Reasons Why USC Football NCAA Sanctions are Not Fair
Ref: bleacher report
USC appealed its June 10, 2010, NCAA football sanctions requesting that they be cut in half. Many USC fans feel that greater reductions are appropriate based on information made public since the NCAA report.
There is a tremendous amount of misinformation about the primary USC “infractions” which the NCAA used to justify its harsh sanctions.
This report identifies many reasons the recent NCAA sanctions against the USC football team are not fair. These include findings that were incorrect and sometimes unprecedented, and sanctions that were much greater than other colleges have received for more severe infractions where the college benefited by paying athletes unlike USC.
Two recent related reports discuss the following:
• Analyzing NCAA Hypocrisy - Root Cause and Solutions - examines the hypocrisy of the NCAA and how they profit at the expense of athletes, especially those from lower income families, and these archaic rules result in most major infractions.
• Is the NCAA Capable of Fair Treatment of Infractions and Sanctions? – identifies the reasons the NCAA is incapable of conducting fair evaluations of alleged infractions and sanctions.
As stated in the NCAA report, the primary infractions were committed by the Reggie Bush family. Unlike most other colleges who received NCAA sanctions because they (or their boosters) gave money to their athletes either to entice them to attend or keep them, USC or its boosters were not involved in any payments to Bush’s family.
Bush did not attend USC due to any payments. In fact, the payments by outside parties were designed to get Bush to leave USC, which he did a year earlier than required. The Bush related violations were to USC’s disadvantage!
This means that USC, unlike other colleges who received less harsh sanctions and paid their athletes, did not participate in the Bush primary infraction. The Bush family may have cheated, and this may have made Bush ineligible. But, USC is receiving football sanctions that are the most severe since the SMU death penalty. This makes no sense!
For those who continue to call USC, Pete Carroll, and others “cheaters” keep in mind the parable, “Let he who has not sinned cast the first stone (John 8:4)” because 150 other Division I colleges and one entire conference have received at least one set of sanctions from the NCAA for major infractions.
However, the NCAA did deprive USC of a fair investigation and infractions hearing. The NCAA issued football sanctions to USC that far exceed sanctions for similar cases based on faulty and unprecedented findings. USC agrees there were some violations and sanctions for them should be appropriate based on NCAA precedent in other cases.
Here are ten reasons that the USC Football NCAA sanctions are unfair.
1. NCAA Errors Resulted in Finding USC had Knowledge of the Bush Family
Dan Weber and Bryan Fisher have published several reports, NCAA Missteps on McNair and Exclusive: Investigation Illustrated that detail the NCAA mistakes and faulty finding about the connection between Todd McNair (USC), Lloyd Lake, and Reggie Bush. This was the only connection with USC in the NCAA report.
These reports prove that that the NCAA did not come close to meeting any burden of proof, even by the very low standards of the NCAA.
Any reasonable person would have to conclude that USC did not know about the Bush family payments after reviewing the NCAA USC Report, USC response to the NCAA, and the Weber/Fisher reports.
USC did not benefit from the Lloyd Lake payments to the Bush family, unlike other colleges that paid their athletes and received lesser sanctions.
2. NCAA Failure to Control Sports Marketers is Blamed on USC
The NCAA held USC responsible for the actions of a sports marketer/agent even though the NCAA has done nothing to control them and there is very little a college institution can do to control them.
College football is the minor leagues for the NFL, so the NCAA could develop a solution with the NFL to control sports marketers/agents.
It is not fair to USC, or any other college, to hold them responsible for the NCAA’s failure.
3. NCAA Classified Michael Ornstein as a USC Booster with No Precedent
The NCAA also made the unprecedented finding that Bush’s $8-an-hour internship with sports marketer Michael Ornstein, which was approved by the NCAA at the time, constituted illegal benefits and erroneously classified Ornstein as a booster.
USC was never told that the NCAA considered Ornstein a booster until the NCAA findings were issued. Using it as a finding for a major infraction shows how far the NCAA will go to rationalize an infraction.
There is no precedent for this decision by the NCAA.
4. Conflicts of Interest Bias the NCAA Infractions Committee
The NCAA Infractions Committee included representatives from Miami (leader), Notre Dame, and Nebraska.
This is a clear conflict of interest because these colleges are competitors for national championships, which require the best recruiting.
Giving USC harsh sanctions by taking away 30 scholarships means that these colleges all benefit by having a better chance to get the better athletes while USC will be at a disadvantage for many years.
For example, USC’s (and the national) No. 1 2010 recruit, Seantrel Henderson, visited Miami over the July 4th holiday weekend and has indicated that he will attend Miami. USC gave him his full release on July 6, 2010, so that he doesn’t have to sit out a year.
If the NCAA had any ethics, you would think that none of the colleges represented on the Infractions Committee would be allowed to recruit and sign USC athletes. Of course, Miami is no better for taking advantage of the conflict of interest.
5. No Precedent for Loss of 30 Scholarships & 2 Bowls for Reasons Given
Even if USC had known about the Bush family payments as the NCAA found, there is no precedent for the loss of 30 scholarships and two bowls for the reasons given by Paul Dee, the Miami rep who led the NCAA Infractions Committee. Dan Weber wrote about this in 20 questions for NCAA Infractions Chair .
Paul Dee justified USC’s loss of 30 scholarships by stating that is how many additional recruits USC got by having Reggie Bush.
But, USC had other Heisman players at the same time, e.g. Carson Palmer and Matt Leinart, so does that mean these three brought in 90 scholarship players for USC?
What about other high profile players like Troy Polamalu, and the fact that USC has sent more players to the NFL than any other college?
Does this mean that USC’s storied football history, USC’s coaches, fair weather California location, and quality of the academic program had nothing to do with recruiting USC athletes?
How did Mr. Dee come up with 30 scholarships, and what is the precedent for calculating it this way?
How did this reflect the fact that USC was not involved in any payments to the Bush family and it was to the school’s disadvantage that this occurred, unlike other colleges who paid athletes and received less scholarship reductions?
Paul Dee also said that USC received a two year bowl ban because Bush played in two bowls while he was ineligible. However, USC was also penalized by having its wins vacated and being required to return all money received.
What is the NCAA precedent for applying the additional two year bowl ban sanction because Bush played?
6. Expert Says USC should have Lost 2 Scholarships
The article USC faces an uphill battle in appeal states “Michael Buckner, a Florida-based attorney and private investigator who has worked on NCAA cases, agreed that "most of the penalties" would be upheld.
However, he said the loss of 10 scholarships a year "might be excessive," noting that the NCAA usually reduces scholarships at the rate of two for every one ineligible player.”
USC had one ineligible football player according to the NCAA, but lost 30 scholarships. USC should have lost 2 scholarships.
7. NCAA Archaic Rules Responsible for Most Major Infractions
The NCAA report cited the “NCAA Principle of Amateurism” to justify the findings against USC.
But, the “non-profit” NCAA has net assets of $397M and is adding $40-50M per year, which far exceeds its management and administrative budget of $29M. Why does the NCAA need all this money?
College coaches make millions of dollars. Conference expansion is all about money.
However, athletes are deprived of their right to become professional until three years after their college class and their time commitment to sports keeps them from making extra money like other students.
The athletes from lower income families are the ones who commit the most major infractions due to lack of money, yet the NCAA won’t allow colleges to give them an allowance that would eliminate most major infractions.
There is plenty of television money available to help the athletes, not punish them; the Olympics solved this problem many years ago.
8. NCAA Ignored the Character of Witnesses
The NCAA believed the testimony of a convicted felon when it suited their purposes.
The Infractions Committee did not review illegal telephone tapes recorded by Lloyd Lake but considered them evidence that he was telling the truth about Todd McNair. However, none of the tapes had anything to do with McNair.
Lake lied about the party that he said he met McNair and talked about Bush, and the NCAA recognized that and didn’t include it as evidence in their finding about McNair.
Lake presented a doctored bitmap photograph to attempt to prove he knew McNair, but the NCAA accepted it without question even though it proved nothing.
The NCAA knew that Lake has a criminal record, and yet they still believed his ridiculous story about a 2.5 minute cell phone call at 1:34am after Bush finished playing football at USC to claim that Todd McNair knew about Bush family payments.
Of course, no one can prove what was discussed but Todd McNair is far more credible than Lloyd Lake.
Todd McNair should sue the NCAA if the appeal process does not clear him, and get $millions like Jerry Tarkanian.
The NCAA did not give USC credit for the character of Pete Carroll who is nationally known for “A Better LA”, a charity devoted to reducing violence in targeted urban areas of Los Angeles. He also launched CampPete.com to bring his unique Win Forever philosophy to kids all over the country. Of course he also received multiple national coach of the year and Pac-10 coach of the year awards. In 2007 his effect on the college football landscape was named one of the biggest developments over the past decade by ESPN the Magazine. In 2008, ESPN.com named Carroll the coach who did the most to define the first 10 years of the BCS Era.
There was also no credit given USC for its many community service programs, and how much it means to the local kids to see and be part of something special.
The NCAA also ignored the excellent academic record of the USC football team in the NCAA June 4, 2010, report placing it in the 70th-80th APR percentile, and awarded diplomas to 31 football seniors in May 2010.
The NCAA noted USC conducted an excellent NCAA rules education program for its athletes, but then did not appear to take that into account when making findings and issuing sanctions.
9. Wrong People Are Punished
These sanctions mostly penalize athletes who were in junior or senior high school at the time the Bush family committed violations. Unfortunately, the NCAA does not care about penalizing innocent athletes, and failed to penalize the individuals responsible.
Others who get penalized include:
• Potential recruits who decide to play at an inferior program due to the USC sanctions
• Ten current players per year who will not get scholarships
• The fans who pay all the bills
• The Pac-10 who loses revenue from an extra bowl game for 2 years
Reggie Bush is the most responsible, and he has his millions and NFL career which is not affected. Of course, Bush's step father and mother took the free rent and nothing happens to them.
Lloyd Lake and Michael Michaels knew they were breaking NCAA rules and they received no punishment.
Todd McNair received penalties affecting his career, but the evidence did not support the NCAA finding.
Pete Carroll, who didn’t know about the Bush family payments, also received no meaningful punishment. Of course, he didn't deserve any except for one violation when he assume a part-time consultant does not count as a coach.
If USC is guilty of lack of institutional control, then you would expect the Athletic Director to be held accountable, yet Mike Garrett received no punishment.
So, the NCAA punishes the wrong people and doesn't seem to care about it.
10. NCAA Appeal Process Designed to be Unsuccessful
The NCAA has upheld only 1 of the 11 appeals since January 2008 when the NCAA changed their rules to make appeals more difficult to be successful (see USC faces an uphill battle in appeal by Baxter Holmes, LA Times).
The offended party must now show "the penalty is excessive such that it constitutes an abuse of discretion" by the NCAA Committee on Infractions.”
But, this is extremely subjective and the NCAA appeals committee can merely conclude that they don’t feel there was an abuse of discretion.
Appeals are heard by a NCAA appeals committee including representatives that are peers of the Infractions Committee with existing relationships. Naturally they don’t want to offend the representatives on the Infractions Committee.
So, the NCAA has assured an unfair process from beginning to end!
USC appealed its June 10, 2010, NCAA football sanctions requesting that they be cut in half. Many USC fans feel that greater reductions are appropriate based on information made public since the NCAA report.
There is a tremendous amount of misinformation about the primary USC “infractions” which the NCAA used to justify its harsh sanctions.
This report identifies many reasons the recent NCAA sanctions against the USC football team are not fair. These include findings that were incorrect and sometimes unprecedented, and sanctions that were much greater than other colleges have received for more severe infractions where the college benefited by paying athletes unlike USC.
Two recent related reports discuss the following:
• Analyzing NCAA Hypocrisy - Root Cause and Solutions - examines the hypocrisy of the NCAA and how they profit at the expense of athletes, especially those from lower income families, and these archaic rules result in most major infractions.
• Is the NCAA Capable of Fair Treatment of Infractions and Sanctions? – identifies the reasons the NCAA is incapable of conducting fair evaluations of alleged infractions and sanctions.
As stated in the NCAA report, the primary infractions were committed by the Reggie Bush family. Unlike most other colleges who received NCAA sanctions because they (or their boosters) gave money to their athletes either to entice them to attend or keep them, USC or its boosters were not involved in any payments to Bush’s family.
Bush did not attend USC due to any payments. In fact, the payments by outside parties were designed to get Bush to leave USC, which he did a year earlier than required. The Bush related violations were to USC’s disadvantage!
This means that USC, unlike other colleges who received less harsh sanctions and paid their athletes, did not participate in the Bush primary infraction. The Bush family may have cheated, and this may have made Bush ineligible. But, USC is receiving football sanctions that are the most severe since the SMU death penalty. This makes no sense!
For those who continue to call USC, Pete Carroll, and others “cheaters” keep in mind the parable, “Let he who has not sinned cast the first stone (John 8:4)” because 150 other Division I colleges and one entire conference have received at least one set of sanctions from the NCAA for major infractions.
However, the NCAA did deprive USC of a fair investigation and infractions hearing. The NCAA issued football sanctions to USC that far exceed sanctions for similar cases based on faulty and unprecedented findings. USC agrees there were some violations and sanctions for them should be appropriate based on NCAA precedent in other cases.
Here are ten reasons that the USC Football NCAA sanctions are unfair.
1. NCAA Errors Resulted in Finding USC had Knowledge of the Bush Family
Dan Weber and Bryan Fisher have published several reports, NCAA Missteps on McNair and Exclusive: Investigation Illustrated that detail the NCAA mistakes and faulty finding about the connection between Todd McNair (USC), Lloyd Lake, and Reggie Bush. This was the only connection with USC in the NCAA report.
These reports prove that that the NCAA did not come close to meeting any burden of proof, even by the very low standards of the NCAA.
Any reasonable person would have to conclude that USC did not know about the Bush family payments after reviewing the NCAA USC Report, USC response to the NCAA, and the Weber/Fisher reports.
USC did not benefit from the Lloyd Lake payments to the Bush family, unlike other colleges that paid their athletes and received lesser sanctions.
2. NCAA Failure to Control Sports Marketers is Blamed on USC
The NCAA held USC responsible for the actions of a sports marketer/agent even though the NCAA has done nothing to control them and there is very little a college institution can do to control them.
College football is the minor leagues for the NFL, so the NCAA could develop a solution with the NFL to control sports marketers/agents.
It is not fair to USC, or any other college, to hold them responsible for the NCAA’s failure.
3. NCAA Classified Michael Ornstein as a USC Booster with No Precedent
The NCAA also made the unprecedented finding that Bush’s $8-an-hour internship with sports marketer Michael Ornstein, which was approved by the NCAA at the time, constituted illegal benefits and erroneously classified Ornstein as a booster.
USC was never told that the NCAA considered Ornstein a booster until the NCAA findings were issued. Using it as a finding for a major infraction shows how far the NCAA will go to rationalize an infraction.
There is no precedent for this decision by the NCAA.
4. Conflicts of Interest Bias the NCAA Infractions Committee
The NCAA Infractions Committee included representatives from Miami (leader), Notre Dame, and Nebraska.
This is a clear conflict of interest because these colleges are competitors for national championships, which require the best recruiting.
Giving USC harsh sanctions by taking away 30 scholarships means that these colleges all benefit by having a better chance to get the better athletes while USC will be at a disadvantage for many years.
For example, USC’s (and the national) No. 1 2010 recruit, Seantrel Henderson, visited Miami over the July 4th holiday weekend and has indicated that he will attend Miami. USC gave him his full release on July 6, 2010, so that he doesn’t have to sit out a year.
If the NCAA had any ethics, you would think that none of the colleges represented on the Infractions Committee would be allowed to recruit and sign USC athletes. Of course, Miami is no better for taking advantage of the conflict of interest.
5. No Precedent for Loss of 30 Scholarships & 2 Bowls for Reasons Given
Even if USC had known about the Bush family payments as the NCAA found, there is no precedent for the loss of 30 scholarships and two bowls for the reasons given by Paul Dee, the Miami rep who led the NCAA Infractions Committee. Dan Weber wrote about this in 20 questions for NCAA Infractions Chair .
Paul Dee justified USC’s loss of 30 scholarships by stating that is how many additional recruits USC got by having Reggie Bush.
But, USC had other Heisman players at the same time, e.g. Carson Palmer and Matt Leinart, so does that mean these three brought in 90 scholarship players for USC?
What about other high profile players like Troy Polamalu, and the fact that USC has sent more players to the NFL than any other college?
Does this mean that USC’s storied football history, USC’s coaches, fair weather California location, and quality of the academic program had nothing to do with recruiting USC athletes?
How did Mr. Dee come up with 30 scholarships, and what is the precedent for calculating it this way?
How did this reflect the fact that USC was not involved in any payments to the Bush family and it was to the school’s disadvantage that this occurred, unlike other colleges who paid athletes and received less scholarship reductions?
Paul Dee also said that USC received a two year bowl ban because Bush played in two bowls while he was ineligible. However, USC was also penalized by having its wins vacated and being required to return all money received.
What is the NCAA precedent for applying the additional two year bowl ban sanction because Bush played?
6. Expert Says USC should have Lost 2 Scholarships
The article USC faces an uphill battle in appeal states “Michael Buckner, a Florida-based attorney and private investigator who has worked on NCAA cases, agreed that "most of the penalties" would be upheld.
However, he said the loss of 10 scholarships a year "might be excessive," noting that the NCAA usually reduces scholarships at the rate of two for every one ineligible player.”
USC had one ineligible football player according to the NCAA, but lost 30 scholarships. USC should have lost 2 scholarships.
7. NCAA Archaic Rules Responsible for Most Major Infractions
The NCAA report cited the “NCAA Principle of Amateurism” to justify the findings against USC.
But, the “non-profit” NCAA has net assets of $397M and is adding $40-50M per year, which far exceeds its management and administrative budget of $29M. Why does the NCAA need all this money?
College coaches make millions of dollars. Conference expansion is all about money.
However, athletes are deprived of their right to become professional until three years after their college class and their time commitment to sports keeps them from making extra money like other students.
The athletes from lower income families are the ones who commit the most major infractions due to lack of money, yet the NCAA won’t allow colleges to give them an allowance that would eliminate most major infractions.
There is plenty of television money available to help the athletes, not punish them; the Olympics solved this problem many years ago.
8. NCAA Ignored the Character of Witnesses
The NCAA believed the testimony of a convicted felon when it suited their purposes.
The Infractions Committee did not review illegal telephone tapes recorded by Lloyd Lake but considered them evidence that he was telling the truth about Todd McNair. However, none of the tapes had anything to do with McNair.
Lake lied about the party that he said he met McNair and talked about Bush, and the NCAA recognized that and didn’t include it as evidence in their finding about McNair.
Lake presented a doctored bitmap photograph to attempt to prove he knew McNair, but the NCAA accepted it without question even though it proved nothing.
The NCAA knew that Lake has a criminal record, and yet they still believed his ridiculous story about a 2.5 minute cell phone call at 1:34am after Bush finished playing football at USC to claim that Todd McNair knew about Bush family payments.
Of course, no one can prove what was discussed but Todd McNair is far more credible than Lloyd Lake.
Todd McNair should sue the NCAA if the appeal process does not clear him, and get $millions like Jerry Tarkanian.
The NCAA did not give USC credit for the character of Pete Carroll who is nationally known for “A Better LA”, a charity devoted to reducing violence in targeted urban areas of Los Angeles. He also launched CampPete.com to bring his unique Win Forever philosophy to kids all over the country. Of course he also received multiple national coach of the year and Pac-10 coach of the year awards. In 2007 his effect on the college football landscape was named one of the biggest developments over the past decade by ESPN the Magazine. In 2008, ESPN.com named Carroll the coach who did the most to define the first 10 years of the BCS Era.
There was also no credit given USC for its many community service programs, and how much it means to the local kids to see and be part of something special.
The NCAA also ignored the excellent academic record of the USC football team in the NCAA June 4, 2010, report placing it in the 70th-80th APR percentile, and awarded diplomas to 31 football seniors in May 2010.
The NCAA noted USC conducted an excellent NCAA rules education program for its athletes, but then did not appear to take that into account when making findings and issuing sanctions.
9. Wrong People Are Punished
These sanctions mostly penalize athletes who were in junior or senior high school at the time the Bush family committed violations. Unfortunately, the NCAA does not care about penalizing innocent athletes, and failed to penalize the individuals responsible.
Others who get penalized include:
• Potential recruits who decide to play at an inferior program due to the USC sanctions
• Ten current players per year who will not get scholarships
• The fans who pay all the bills
• The Pac-10 who loses revenue from an extra bowl game for 2 years
Reggie Bush is the most responsible, and he has his millions and NFL career which is not affected. Of course, Bush's step father and mother took the free rent and nothing happens to them.
Lloyd Lake and Michael Michaels knew they were breaking NCAA rules and they received no punishment.
Todd McNair received penalties affecting his career, but the evidence did not support the NCAA finding.
Pete Carroll, who didn’t know about the Bush family payments, also received no meaningful punishment. Of course, he didn't deserve any except for one violation when he assume a part-time consultant does not count as a coach.
If USC is guilty of lack of institutional control, then you would expect the Athletic Director to be held accountable, yet Mike Garrett received no punishment.
So, the NCAA punishes the wrong people and doesn't seem to care about it.
10. NCAA Appeal Process Designed to be Unsuccessful
The NCAA has upheld only 1 of the 11 appeals since January 2008 when the NCAA changed their rules to make appeals more difficult to be successful (see USC faces an uphill battle in appeal by Baxter Holmes, LA Times).
The offended party must now show "the penalty is excessive such that it constitutes an abuse of discretion" by the NCAA Committee on Infractions.”
But, this is extremely subjective and the NCAA appeals committee can merely conclude that they don’t feel there was an abuse of discretion.
Appeals are heard by a NCAA appeals committee including representatives that are peers of the Infractions Committee with existing relationships. Naturally they don’t want to offend the representatives on the Infractions Committee.
So, the NCAA has assured an unfair process from beginning to end!
RE: THE NCAA, DUE PROCESS, MISLEADING AND FALSE TESTIMONY
Ref: USCFootball.com
From the desk of
Joseph C. Shell, Jr.
December 28, 2010
Hon. Spencer Bachus
U.S. House of Representatives
2246 Rayburn Building
Washington, D.C. 20515
RE: THE NCAA, DUE PROCESS, MISLEADING AND FALSE TESTIMONY
Dear Congressman Bachus,
At this time it would appear it is time to revisit the NCAA's testimony before Congress and your Committee, specifically the testimony regarding whether or not the NCAA affords those accused by the NCAA of wrongdoing, anything that resembles due process.
As the you will probably recall, the NCAA gave testimony, led by Professor Josephine (Jo) R. Potuto, that the NCAA not only afforded the accused due process, but the due process rights afforded the accused by the NCAA "very likely exceed any applicable 14th Amendment procedural protections."
Professor Potuto was not only testifying before your committee as a member of the NCAA Committee On Infractions (COI), but also as the Richard H. Larson Professor of Constitutional Law at the University of Nebraska (see Exhibit 1).
Professor Potuto lists as her areas of expertise:
- Federal Jurisdiction
- Sports Law
- Constitutional Law
- Criminal Procedure
- Conflict of Laws
- Appellate Advocacy
With such an extensive legal background, there should be no question that Professor Potuto would be completely aware of what comprises due process, and what actions by a prosecutor, or in this case the NCAA, would violate the due process rights of the accused.
Professor Potuto should also be aware of the consequences of giving false or misleading testimony to Congress. Roger Clemens is painfully aware of what happens when one is accused of giving such false or misleading testimony.
There is a significant difference between Clemens and Professor Potuto. Clemens was a baseball player. Professor Potuto is an expert in Sports Law, Constitutional Law and Criminal Procedure.
Which brings me to the point of this letter.
When Professor Potuto testified before your Committee regarding the due process afforded the accused by the NCAA, and testified that not only did the accused have due process rights, but those rights "would very likely exceed" any 14th Amendment due process standard, Professor Potuto should have known as a long standing Member of the NCAA COI, her statements weren't completely accurate. Professor Potuto has continued to participate in NCAA investigations subsequent to this testimony in her role as a key Member of the COI, where the rights of the accused not only weren't observed, in some cases they were trampled in the pursuit of an agenda driven outcome.
Professor Potuto made this representation regarding the NCAA's due process procedures in both her opening statement, and her written statement to the Committee.
Professor Potuto, in responding to your questioning regarding the right of the accused to confront witnesses at the "hearing," emphatically stated that an individual accused of a violation had the right to question any witness appearing at the "hearing."
The sleight of hand by Professor Potuto should not go unnoticed. As was pointed out by another witness at this same hearing (in his written statement), because most people with personal knowledge of the relevant facts are not permitted to attend, cross-examination of "witnesses" is not possible. Rules of evidence are not followed, and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.
When Professor Potuto gave you the impression that the right of the accused to confront the accuser was part of the By-laws, she carefully neglected to mention that she was only referring to the hearing itself, not interviews of witnesses done by the investigative staff behind closed doors. Witnesses who would not appear at the "hearing," misleading you.
Due process is only relevant when convenient to the NCAA's world.
Such was the case involving USC and the monumental sanctions brought against them after a five-year investigation. Professor Potuto is purported to be one of two Members of the COI who were driving the proverbial bus. Paul Dee, the chairman, is the other.
It should be noted the USC investigation commenced not that long after Professor Potuto testified before your Committee about the NCAA's exceptional due process protections afforded the accused.
In the case of USC, the Investigative Staff and the COI, when they couldn't find genuine evidence that USC had any knowledge of what Reggie Bush and his family were up to, it appears they began manufacturing "evidence" out of the thinnest or non-existent evidentiary threads.
And the victim of this manufactured "evidence", and what amounted to a kangaroo court (apologies to any kangaroos who take offense at being compared to the COI), was Todd McNair. An Assistant Coach who did nothing wrong, but who the NCAA investigative staff, Professor Potuto, Paul Dee and the COI, apparently were willing to destroy in order to be able to fulfill their agenda of seriously damaging USC.
The fact that Todd McNair was a model citizen, college graduate, and married with four children, was irrelevant in their obsessive drive to "get" USC.
I will not go through the laundry list of abuses that took place regarding Todd McNair, because attached to this letter are Todd McNair's Appeal of the NCAA Ruling (see Exhibit 2), and his Rebuttal to the NCAA's response to his Appeal (see Exhibit 3). They outline the deliberate pattern of abuse regarding Mr. McNair's rights, and the agenda driven trampling of anything remotely resembling due process.
I would strongly recommend that your staffs contact Todd McNair's attorney directly regarding any questions that might arise from reading these two briefs.
Your Committee should invite Professor Potuto and the other members of the COI and investigative staff to testify, under oath, again, and seek a clarification as to what Professor Potuto and the NCAA consider due process, and how their conduct in the USC/McNair case met or exceeded any due process standard.
The new President of the NCAA, Mark Emmert, and the new head of Enforcement, Julie Roe Lach, are saying all the right things about the importance of getting the facts right and transparency. They should be invited to testify before your Committee and explain why their public statements do not appear to reflect what happened in the USC investigation, and continues to this day.
Based on the way the NCAA is handling (railroading) the McNair Appeal, it would appear these statements are for public consumption with no substance behind them, because the NCAA continues to conduct business as usual. They do not believe they are accountable to anyone for their actions.
It may be time for Congress to address the failings of the NCAA regarding due process, among other issues. The United States Supreme Court has openly questioned how the NCAA qualifies as a tax-exempt organization. In these times of huge budget deficits, that would also seem to be ripe for review.
Sincerely,
Joe Shell, Jr.
Enclosures.
CC: Mark Emmert
Julie Roe Lach
From the desk of
Joseph C. Shell, Jr.
December 28, 2010
Hon. Spencer Bachus
U.S. House of Representatives
2246 Rayburn Building
Washington, D.C. 20515
RE: THE NCAA, DUE PROCESS, MISLEADING AND FALSE TESTIMONY
Dear Congressman Bachus,
At this time it would appear it is time to revisit the NCAA's testimony before Congress and your Committee, specifically the testimony regarding whether or not the NCAA affords those accused by the NCAA of wrongdoing, anything that resembles due process.
As the you will probably recall, the NCAA gave testimony, led by Professor Josephine (Jo) R. Potuto, that the NCAA not only afforded the accused due process, but the due process rights afforded the accused by the NCAA "very likely exceed any applicable 14th Amendment procedural protections."
Professor Potuto was not only testifying before your committee as a member of the NCAA Committee On Infractions (COI), but also as the Richard H. Larson Professor of Constitutional Law at the University of Nebraska (see Exhibit 1).
Professor Potuto lists as her areas of expertise:
- Federal Jurisdiction
- Sports Law
- Constitutional Law
- Criminal Procedure
- Conflict of Laws
- Appellate Advocacy
With such an extensive legal background, there should be no question that Professor Potuto would be completely aware of what comprises due process, and what actions by a prosecutor, or in this case the NCAA, would violate the due process rights of the accused.
Professor Potuto should also be aware of the consequences of giving false or misleading testimony to Congress. Roger Clemens is painfully aware of what happens when one is accused of giving such false or misleading testimony.
There is a significant difference between Clemens and Professor Potuto. Clemens was a baseball player. Professor Potuto is an expert in Sports Law, Constitutional Law and Criminal Procedure.
Which brings me to the point of this letter.
When Professor Potuto testified before your Committee regarding the due process afforded the accused by the NCAA, and testified that not only did the accused have due process rights, but those rights "would very likely exceed" any 14th Amendment due process standard, Professor Potuto should have known as a long standing Member of the NCAA COI, her statements weren't completely accurate. Professor Potuto has continued to participate in NCAA investigations subsequent to this testimony in her role as a key Member of the COI, where the rights of the accused not only weren't observed, in some cases they were trampled in the pursuit of an agenda driven outcome.
Professor Potuto made this representation regarding the NCAA's due process procedures in both her opening statement, and her written statement to the Committee.
Professor Potuto, in responding to your questioning regarding the right of the accused to confront witnesses at the "hearing," emphatically stated that an individual accused of a violation had the right to question any witness appearing at the "hearing."
The sleight of hand by Professor Potuto should not go unnoticed. As was pointed out by another witness at this same hearing (in his written statement), because most people with personal knowledge of the relevant facts are not permitted to attend, cross-examination of "witnesses" is not possible. Rules of evidence are not followed, and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.
When Professor Potuto gave you the impression that the right of the accused to confront the accuser was part of the By-laws, she carefully neglected to mention that she was only referring to the hearing itself, not interviews of witnesses done by the investigative staff behind closed doors. Witnesses who would not appear at the "hearing," misleading you.
Due process is only relevant when convenient to the NCAA's world.
Such was the case involving USC and the monumental sanctions brought against them after a five-year investigation. Professor Potuto is purported to be one of two Members of the COI who were driving the proverbial bus. Paul Dee, the chairman, is the other.
It should be noted the USC investigation commenced not that long after Professor Potuto testified before your Committee about the NCAA's exceptional due process protections afforded the accused.
In the case of USC, the Investigative Staff and the COI, when they couldn't find genuine evidence that USC had any knowledge of what Reggie Bush and his family were up to, it appears they began manufacturing "evidence" out of the thinnest or non-existent evidentiary threads.
And the victim of this manufactured "evidence", and what amounted to a kangaroo court (apologies to any kangaroos who take offense at being compared to the COI), was Todd McNair. An Assistant Coach who did nothing wrong, but who the NCAA investigative staff, Professor Potuto, Paul Dee and the COI, apparently were willing to destroy in order to be able to fulfill their agenda of seriously damaging USC.
The fact that Todd McNair was a model citizen, college graduate, and married with four children, was irrelevant in their obsessive drive to "get" USC.
I will not go through the laundry list of abuses that took place regarding Todd McNair, because attached to this letter are Todd McNair's Appeal of the NCAA Ruling (see Exhibit 2), and his Rebuttal to the NCAA's response to his Appeal (see Exhibit 3). They outline the deliberate pattern of abuse regarding Mr. McNair's rights, and the agenda driven trampling of anything remotely resembling due process.
I would strongly recommend that your staffs contact Todd McNair's attorney directly regarding any questions that might arise from reading these two briefs.
Your Committee should invite Professor Potuto and the other members of the COI and investigative staff to testify, under oath, again, and seek a clarification as to what Professor Potuto and the NCAA consider due process, and how their conduct in the USC/McNair case met or exceeded any due process standard.
The new President of the NCAA, Mark Emmert, and the new head of Enforcement, Julie Roe Lach, are saying all the right things about the importance of getting the facts right and transparency. They should be invited to testify before your Committee and explain why their public statements do not appear to reflect what happened in the USC investigation, and continues to this day.
Based on the way the NCAA is handling (railroading) the McNair Appeal, it would appear these statements are for public consumption with no substance behind them, because the NCAA continues to conduct business as usual. They do not believe they are accountable to anyone for their actions.
It may be time for Congress to address the failings of the NCAA regarding due process, among other issues. The United States Supreme Court has openly questioned how the NCAA qualifies as a tax-exempt organization. In these times of huge budget deficits, that would also seem to be ripe for review.
Sincerely,
Joe Shell, Jr.
Enclosures.
CC: Mark Emmert
Julie Roe Lach
Sunday, January 2, 2011
Going after the NCAA’s ‘underbelly’
Could the next stop for the troubling NCAA case against USC and Todd McNair be Washington?
If one very busy USC alum, Joe Shell, a legal analyst by profession, has his way, Congress is exactly where this affair could, and should, be headed.
Shell, a longtime Trojans football fan, has been using his legal background in recent months to try to figure a way for USC and McNair to defend themselves. But the legal analyst for a major Long Beach law firm finally came to this reality.
This case is a lot like football. The best defense might be a good offense.
Shell is moving on a two-track approach right now. He’s questioning the truthfulness of the NCAA’s previous due process guarantees in its testimony to Congress and challenging its tax-exempt status for not living up to its charter and mission statement.
“The only way to get to the NCAA is to get to their underbelly,” Shell says. “And their underbelly is Congress. Congress can actually do them in.”
But is there a way to do that, Shell wondered. How to make the NCAA answer to Congress for its dozens of violations of due process against McNair in the USC case?
How do you call the NCAA on the carpet? It pretty much acts as its own prosecutor, judge, jury and court of appeals. And lawsuits are difficult to pull off by members of a voluntary organization, history has shown.
So how do USC and McNair get a fair hearing here?
That’s where another USC alum, Los Angeles lawyer David McLeod, came in. He reminded Shell of something he’d remembered from back in 2004.
A little legal research tracked down what McLeod thought he’d recalled. In 2004, the NCAA had given testimony to the Constitution Subcommittee of the House Judiciary Committee guaranteeing that the accused in NCAA cases would receive due process protections second to none.
Anyone reading the USC and McNair case files, and a series of USCFootball.com stories on the NCAA’s many problems there, would know that’s not the case, Shell realized.
“Due process is a big deal,” he says. “None of what the NCAA has done here would ever fly in a court of law.”
So Shell went on analyzing as he put together a file of all the material he could come up with highlighting the NCAA’s many missteps.
He’s starting out by getting it to the member who made that 2004 NCAA hearing request—Alabama Congressman Spencer Bachus. He seemed least convinced by the NCAA’s due process guarantees in his questioning.
Presumably, Bachus is as interested as ever, Shell said, now that the spotlight on the NCAA has never been brighter. The recent Cam Newton/Auburn and Ohio State rulings less than six months after the USC decision make that clear.
Bachus’ staff is already in possession of the 130-page, 3/4-inch thick briefing binder that Shell has prepared. But he’s not stopping with Bachus.
Other USC contacts have proceeded with two powerful Congressmen from Southern California. The staffs of Vista’s Darrell Issa, whose Oversight Committee will handle many of the investigations in the new Congress, as well as that of David Dreier of San Dimas, new chair of the powerful House Rules Committee, have also received the Shell’s briefing book.
Senate staffs who have received the NCAA/USC file include those of Utah’s Orrin Hatch, Iowa’s Charles Grassley and Montana’s Max Baucus, all with previous interest in how the NCAA does its business.
Shell’s contention to them, based on reading and analyzing the 2004 testimony of the NCAA’s expert, Nebraska law Professor Dr. Josephine (Jo) R. Potuto, is that Potuto was dissembling to Congress. In light of the actions in the USC case, there’s simply no other way to characterize it, he says.
There’s a link to Shell’s cover letter to Congress, with new NCAA President Mark Emmert and director of enforcement Julie Roe Lach also getting a copy, at the bottom of this story.
“My personal opinion, to give her the benefit of the doubt, Ms. Potuto was being deceptive,” Shell says of the Nebraska professor who joined Chairman Paul Dee on the Committee on Infractions that harshly penalized USC.
There’s a story behind that. Despite having used up her limit of three three-year terms, Potuto was placed back on the COI for the USC case. She replaced Oregon law school professor James O’Fallon, who wasn’t allowed to sit on the case of a fellow Pac-10 conference member.
Potuto’s presence was a problem, Shell says, despite her testimony to Congress that the NCAA’s “enforcement, infractions and hearing procedures meet due process standards. In fact, they parallel, if not exceed, those procedures … the NCAA in its infractions process clearly meets and very likely exceeds applicable 14th Amendment procedural protections.”
Potuto also said an accused absolutely could confront an accuser at an NCAA hearing.
Bachus said he was surprised, maybe that he had misunderstood, thinking “that you didn’t allow people to confront the witnesses.”
“I teach constitutional law,” Potuto assured Bachus. “We do, and I can give you the bylaw provisions.”
That assurance will be news to USC lawyers who did everything they could think of to try to interview, or just sit in on the NCAA staff’s interviews, with McNair accuser Lloyd Lake. But USC was rebuffed in every instance, to the point of finally accusing the NCAA of resorting to deliberately misleading them to keep the USC lawyers away from the Lake interviews.
Bachus, in a post-hearing newsletter, realized he’d been had, zeroing in on Potuto’s assurance of the accused’s ability to confront accusers at an infractions hearing “as nothing other than deceptive.”
Here’s how that went:
But in his written testimony to the Subcommittee, nationally renowned Tulane Sports Law Professor Gary Roberts, shot Potuto’s testimony down, saying such questioning would not be possible.
“Because most of the people with personal knowledge of the relevant facts are not allowed to attend, cross-examination of ‘witnesses’ is not possible, ” Roberts wrote. “Rules of evidence are not followed and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.”
Potuto didn’t mention that, Shell says. And that could be a problem for the NCAA now.
“Remember what happened to Roger Clemens?” Shell says of the Hall of Fame pitcher who is accused of not telling the truth to a Congressional committee.
Well, if Congress goes back over the hearing testimony as he has, and recalls the NCAA and Potuto to Washington, there could be “a Clemens problem” if Potuto’s words are matched up against her COI and its actions against USC and McNair.
“And not only in this case, in many other cases,” Shell says. “The NCAA appears to believe the rules do not apply to them. They are agenda-driven. They decide the outcome, as they did with USC, and then they put together whatever they need to reach that outcome.”
Shell makes no bones that he’s coming at this from a USC partisan point of view.
The self-described “third-generation Trojan” who lives in Dana Point can remember all the way back to 1964 when he was “sitting in the student section cheering for Mike Garrett. That was the game when Craig Fertig hit Rod Sherman with the touchdown pass for a 20-17 USC win over No. 1 Notre Dame,” he says.
He’s also a guy who works seven days a week, 11 hours a day, analyzing thousands of legal documents. A case he’s involved with now has 1.2 million documents.
So the NCAA file wasn’t all that difficult for Shell to digest.
“I’m paid to read documents and come up with the story they tell,” Shell says. “If there’s a problem, my partners want me to tell them about it right away … That doesn’t seem to be how the NCAA works.”
The first problem that jumped out at Shell, he says, was “the dumbest thing in the whole [Infractions] report—that first footnote where the staff said that on advice of counsel, the Committee couldn’t listen to the [Lloyd] Lake tapes. But it was obvious the staff was listening to the tapes. Now if it’s illegal for the Committee to listen to them, it’s illegal for the staff to. I guess they just think they’re impregnable.”
His reading of the case, and he hopes the reading Congress gives it, is that: “At the end of the day, the NCAA felt it had to go out and destroy Todd McNair to show a lack of institutional control on the part of USC. And that’s what it did.”
He thinks Bachus will understand. When the Alabaman asked for the hearing in 2004, in what seems like a precursor of today’s news, Bachus said it was to review the NCAA’s disparate treatment of two athletes. He wanted to know how the NCAA procedures came to opposite conclusions in similar circumstances.
NFL football player Tim Dwight was allowed to remain eligible and run track at his alma mater Iowa despite taking NFL endorsement money before his final track season. But Olympic skier Jeremy Bloom was ruled ineligible to play football at Colorado after taking endorsement money in order to be able to train as a skier.
In a story on the NCAA Web site, Bachus, a graduate of both Auburn and Alabama, said the NCAA falsely said he’d asked for the hearing to review the recent infractions cases at his alma maters. “An attempt to poison the atmosphere,” Bachus said.
Two other issues are play in here, Shell says. During the USC investigation, and without a vote of the membership, the NCAA changed its appeals rules making it much harder for anyone to appeal an infractions finding.
“I think they knew they had the thinnest of cases to do what they were going to do to USC and McNair,” Shell says. “And they were getting ready for it.”
A recent 77-page Potuto self-congratulatory law review article on NCAA rules and procedures, the laws that regulate them and the nature of court review, is problematic, Shell says. In it, Potuto concludes: “The NCAA governance structure is about as well-conceived to achieve the goals of its members as is possible in an imperfect world.”
Right.
But there is one Potuto recommendation in the article that Shell characterizes as “truly scary.” And obviously a shot at former USC basketball player O.J. Mayo, and others, who refuse to talk to NCAA investigators.
We’ll quote it here: “When a former student-athlete is being investigated for the commission of a violation while a student, what additionally should be considered is treating the failure to respond to the allegation as an admission by silence of that
violation.”
There you go. Good old due process—in the NCAA or North Korea? You’re guilty until proven innocent—and you must testify against yourself. And to an organization that you’ve never, as a student-athlete, voluntarily joined.
Discovering a recommendation like that that has Shell looking at the nuclear option—asking for Congress to review the organization’s tax-exempt status.
“That’s the only way to get their attention,” he says.
Here’s how Shell says he’d like to see that go. “The NCAA has a Mission Statement, as all tax-exempt organizations do.”
The NCAA’s Mission Statement says its “Core Purpose” is to “govern competition in a fair, safe, equitable and sportsmanlike manner.”
And its “Core Values” include a “commitment to … the highest levels of integrity and sportsmanship.”
By those standards, the NCAA, Shell says, is failing miserably to live up to its Mission Statement.
“How can the NCAA accomplish that,” Shell asks, “when there appears to be a complete lack of integrity in their infractions and enforcement processes?”
If one very busy USC alum, Joe Shell, a legal analyst by profession, has his way, Congress is exactly where this affair could, and should, be headed.
Shell, a longtime Trojans football fan, has been using his legal background in recent months to try to figure a way for USC and McNair to defend themselves. But the legal analyst for a major Long Beach law firm finally came to this reality.
This case is a lot like football. The best defense might be a good offense.
Shell is moving on a two-track approach right now. He’s questioning the truthfulness of the NCAA’s previous due process guarantees in its testimony to Congress and challenging its tax-exempt status for not living up to its charter and mission statement.
“The only way to get to the NCAA is to get to their underbelly,” Shell says. “And their underbelly is Congress. Congress can actually do them in.”
But is there a way to do that, Shell wondered. How to make the NCAA answer to Congress for its dozens of violations of due process against McNair in the USC case?
How do you call the NCAA on the carpet? It pretty much acts as its own prosecutor, judge, jury and court of appeals. And lawsuits are difficult to pull off by members of a voluntary organization, history has shown.
So how do USC and McNair get a fair hearing here?
That’s where another USC alum, Los Angeles lawyer David McLeod, came in. He reminded Shell of something he’d remembered from back in 2004.
A little legal research tracked down what McLeod thought he’d recalled. In 2004, the NCAA had given testimony to the Constitution Subcommittee of the House Judiciary Committee guaranteeing that the accused in NCAA cases would receive due process protections second to none.
Anyone reading the USC and McNair case files, and a series of USCFootball.com stories on the NCAA’s many problems there, would know that’s not the case, Shell realized.
“Due process is a big deal,” he says. “None of what the NCAA has done here would ever fly in a court of law.”
So Shell went on analyzing as he put together a file of all the material he could come up with highlighting the NCAA’s many missteps.
He’s starting out by getting it to the member who made that 2004 NCAA hearing request—Alabama Congressman Spencer Bachus. He seemed least convinced by the NCAA’s due process guarantees in his questioning.
Presumably, Bachus is as interested as ever, Shell said, now that the spotlight on the NCAA has never been brighter. The recent Cam Newton/Auburn and Ohio State rulings less than six months after the USC decision make that clear.
Bachus’ staff is already in possession of the 130-page, 3/4-inch thick briefing binder that Shell has prepared. But he’s not stopping with Bachus.
Other USC contacts have proceeded with two powerful Congressmen from Southern California. The staffs of Vista’s Darrell Issa, whose Oversight Committee will handle many of the investigations in the new Congress, as well as that of David Dreier of San Dimas, new chair of the powerful House Rules Committee, have also received the Shell’s briefing book.
Senate staffs who have received the NCAA/USC file include those of Utah’s Orrin Hatch, Iowa’s Charles Grassley and Montana’s Max Baucus, all with previous interest in how the NCAA does its business.
Shell’s contention to them, based on reading and analyzing the 2004 testimony of the NCAA’s expert, Nebraska law Professor Dr. Josephine (Jo) R. Potuto, is that Potuto was dissembling to Congress. In light of the actions in the USC case, there’s simply no other way to characterize it, he says.
There’s a link to Shell’s cover letter to Congress, with new NCAA President Mark Emmert and director of enforcement Julie Roe Lach also getting a copy, at the bottom of this story.
“My personal opinion, to give her the benefit of the doubt, Ms. Potuto was being deceptive,” Shell says of the Nebraska professor who joined Chairman Paul Dee on the Committee on Infractions that harshly penalized USC.
There’s a story behind that. Despite having used up her limit of three three-year terms, Potuto was placed back on the COI for the USC case. She replaced Oregon law school professor James O’Fallon, who wasn’t allowed to sit on the case of a fellow Pac-10 conference member.
Potuto’s presence was a problem, Shell says, despite her testimony to Congress that the NCAA’s “enforcement, infractions and hearing procedures meet due process standards. In fact, they parallel, if not exceed, those procedures … the NCAA in its infractions process clearly meets and very likely exceeds applicable 14th Amendment procedural protections.”
Potuto also said an accused absolutely could confront an accuser at an NCAA hearing.
Bachus said he was surprised, maybe that he had misunderstood, thinking “that you didn’t allow people to confront the witnesses.”
“I teach constitutional law,” Potuto assured Bachus. “We do, and I can give you the bylaw provisions.”
That assurance will be news to USC lawyers who did everything they could think of to try to interview, or just sit in on the NCAA staff’s interviews, with McNair accuser Lloyd Lake. But USC was rebuffed in every instance, to the point of finally accusing the NCAA of resorting to deliberately misleading them to keep the USC lawyers away from the Lake interviews.
Bachus, in a post-hearing newsletter, realized he’d been had, zeroing in on Potuto’s assurance of the accused’s ability to confront accusers at an infractions hearing “as nothing other than deceptive.”
Here’s how that went:
Potuto: “Anybody who appears at that hearing has that right … to ask questions of any individuals or party at a hearing.”
Bachus: “So anyone charged with an offense has the right to appear at the hearing and cross-examine all the witnesses?”
Potuto: “Cross-examining might not be the correct term for it but certainly the right to inquire of anyone else who appears.”
Bachus: “To question the witnesses?”
Potuto: “Of course.”
But in his written testimony to the Subcommittee, nationally renowned Tulane Sports Law Professor Gary Roberts, shot Potuto’s testimony down, saying such questioning would not be possible.
“Because most of the people with personal knowledge of the relevant facts are not allowed to attend, cross-examination of ‘witnesses’ is not possible, ” Roberts wrote. “Rules of evidence are not followed and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.”
Potuto didn’t mention that, Shell says. And that could be a problem for the NCAA now.
“Remember what happened to Roger Clemens?” Shell says of the Hall of Fame pitcher who is accused of not telling the truth to a Congressional committee.
Well, if Congress goes back over the hearing testimony as he has, and recalls the NCAA and Potuto to Washington, there could be “a Clemens problem” if Potuto’s words are matched up against her COI and its actions against USC and McNair.
“And not only in this case, in many other cases,” Shell says. “The NCAA appears to believe the rules do not apply to them. They are agenda-driven. They decide the outcome, as they did with USC, and then they put together whatever they need to reach that outcome.”
Shell makes no bones that he’s coming at this from a USC partisan point of view.
The self-described “third-generation Trojan” who lives in Dana Point can remember all the way back to 1964 when he was “sitting in the student section cheering for Mike Garrett. That was the game when Craig Fertig hit Rod Sherman with the touchdown pass for a 20-17 USC win over No. 1 Notre Dame,” he says.
He’s also a guy who works seven days a week, 11 hours a day, analyzing thousands of legal documents. A case he’s involved with now has 1.2 million documents.
So the NCAA file wasn’t all that difficult for Shell to digest.
“I’m paid to read documents and come up with the story they tell,” Shell says. “If there’s a problem, my partners want me to tell them about it right away … That doesn’t seem to be how the NCAA works.”
The first problem that jumped out at Shell, he says, was “the dumbest thing in the whole [Infractions] report—that first footnote where the staff said that on advice of counsel, the Committee couldn’t listen to the [Lloyd] Lake tapes. But it was obvious the staff was listening to the tapes. Now if it’s illegal for the Committee to listen to them, it’s illegal for the staff to. I guess they just think they’re impregnable.”
His reading of the case, and he hopes the reading Congress gives it, is that: “At the end of the day, the NCAA felt it had to go out and destroy Todd McNair to show a lack of institutional control on the part of USC. And that’s what it did.”
He thinks Bachus will understand. When the Alabaman asked for the hearing in 2004, in what seems like a precursor of today’s news, Bachus said it was to review the NCAA’s disparate treatment of two athletes. He wanted to know how the NCAA procedures came to opposite conclusions in similar circumstances.
NFL football player Tim Dwight was allowed to remain eligible and run track at his alma mater Iowa despite taking NFL endorsement money before his final track season. But Olympic skier Jeremy Bloom was ruled ineligible to play football at Colorado after taking endorsement money in order to be able to train as a skier.
In a story on the NCAA Web site, Bachus, a graduate of both Auburn and Alabama, said the NCAA falsely said he’d asked for the hearing to review the recent infractions cases at his alma maters. “An attempt to poison the atmosphere,” Bachus said.
Two other issues are play in here, Shell says. During the USC investigation, and without a vote of the membership, the NCAA changed its appeals rules making it much harder for anyone to appeal an infractions finding.
“I think they knew they had the thinnest of cases to do what they were going to do to USC and McNair,” Shell says. “And they were getting ready for it.”
A recent 77-page Potuto self-congratulatory law review article on NCAA rules and procedures, the laws that regulate them and the nature of court review, is problematic, Shell says. In it, Potuto concludes: “The NCAA governance structure is about as well-conceived to achieve the goals of its members as is possible in an imperfect world.”
Right.
But there is one Potuto recommendation in the article that Shell characterizes as “truly scary.” And obviously a shot at former USC basketball player O.J. Mayo, and others, who refuse to talk to NCAA investigators.
We’ll quote it here: “When a former student-athlete is being investigated for the commission of a violation while a student, what additionally should be considered is treating the failure to respond to the allegation as an admission by silence of that
violation.”
There you go. Good old due process—in the NCAA or North Korea? You’re guilty until proven innocent—and you must testify against yourself. And to an organization that you’ve never, as a student-athlete, voluntarily joined.
Discovering a recommendation like that that has Shell looking at the nuclear option—asking for Congress to review the organization’s tax-exempt status.
“That’s the only way to get their attention,” he says.
Here’s how Shell says he’d like to see that go. “The NCAA has a Mission Statement, as all tax-exempt organizations do.”
The NCAA’s Mission Statement says its “Core Purpose” is to “govern competition in a fair, safe, equitable and sportsmanlike manner.”
And its “Core Values” include a “commitment to … the highest levels of integrity and sportsmanship.”
By those standards, the NCAA, Shell says, is failing miserably to live up to its Mission Statement.
“How can the NCAA accomplish that,” Shell asks, “when there appears to be a complete lack of integrity in their infractions and enforcement processes?”
Tuesday, December 28, 2010
He knows -- and tells -- truth about NCAA
Wednesday, March 9, 2005
By JOHN LEVESQUE
SEATTLE POST-INTELLIGENCER COLUMNIST
If the NCAA has a heart and a brain, it will promote Bill Saum and David Price, give them enormous raises and tell them they can't have anything to do with enforcing the NCAA's rules anymore.
That would please B. David Ridpath even more than the event that occurred Monday in King County Superior Court.
In the meantime, knowing that the NCAA agreed to pay Rick Neuheisel $2.5 million of a $4.5 million settlement has made Ridpath "absolutely giddy."
Ridpath doesn't like the NCAA.
More precisely, he doesn't like how the NCAA operates.
Even though his impressions of Neuheisel are of a guy who plays fast and loose with the truth, Ridpath is delighted the former University of Washington football coach has taken a bite out of the organization that purports to regulate college athletics.
"You would not believe how they jump on people and how they target people," Ridpath said yesterday from his office in Starkville, Miss.
Actually, after reading about NCAA tactics the past few weeks, I think I might.
"For years they have skewered people for not following the rules as they see them," Ridpath said. "... They hold people to a different standard, and yet when held to that same standard they throw money and try to spin themselves out of trouble."
Ridpath, an associate professor of sport administration at Mississippi State University, knows the skewer's sting as intimately as anyone. Four years ago, when he was athletic compliance director at Marshall University in West Virginia, he was run through and then slow-roasted over the NCAA's coals.
His story is fascinating because it's similar to what occurred at the UW, except for who took the fall and ended up suing the university.
In the case at Marshall, it wasn't the football coach. Bob Pruett is still going strong, even after his football program was hit with four years' probation by the NCAA. Instead, it was Ridpath, who held the position analogous to that of Dana Richardson, author of the infamous UW memo that said participation by athletic department personnel in "March Madness" basketball betting pools was permissible.
Ridpath never did anything as egregious. His "crime" was not being aware of a scam that allowed Marshall athletes to "earn" $25 an hour for doing little or no work at a company owned by a longtime booster. He had been hired to clean up a messy program, but he became the scapegoat when the university hired a pricey attorney to protect itself and its high-profile employees like Pruett.
Why do I believe him?
Because Marshall University promoted Ridpath and gave him a raise after it got slapped by the NCAA. That would tend to silence most people, but the NCAA dossier on Ridpath has a black mark next to his name, which means he isn't likely to get another job in the compliance field.
So he is suing Marshall and Pruett, he has testified before Congress and he's happy to talk to just about anyone else about the NCAA's excesses in rule enforcement. Since the NCAA doesn't have to abide by the sort of due process we're accustomed to seeing in the American system of jurisprudence, Ridpath says it is free to do just about anything it wants in investigating suspected doers of wrong.
Visions of thumb screws in a dungeon and firing squads at dawn float immediately to mind. Ridpath indicated it's not far from the truth.
"I've seen them make people cry, belittle people, use covert racism, tell lawyers to shut up and say they have no rights," he said. "It's unlike anything you've ever seen.
"They will ruin the reputations and careers of anyone who doesn't follow or who misinterprets the rules as they see them."
Ridpath said he believes he and Neuheisel were targeted because they didn't cave in.
"I was very vigorous in defending Marshall," he said, "and if you give the NCAA static, they don't like that. They will get you in the end because they know they can."
Ridpath finds particularly sweet irony in the NCAA's complaint that it wasn't able to mount a full defense in the Neuheisel trial because of a ruling by Judge Michael Spearman that arose out of a discovery that the NCAA had changed its bylaws but hadn't notified Neuheisel's defense team.
"I was not allowed to give my case, either," he said. "I was shot down as some incompetent nut job. ... When the NCAA took me down, it was a sad day for college athletics because I cared about the rules and I was shown the door."
Ridpath said nothing will change until the NCAA enforcement process is overhauled.
Starting with Price, the vice president of enforcement, and Saum, the director of gambling activities, would be fine with him.
The testimony from the trial over Neuheisel's lawsuit against the UW and the NCAA indicates Price and Saum do indeed embrace a systematic disregard for fairness and openness in investigating suspected violators and in applying punishment.
My favorite revelation from the trial involves Saum, who directed the early investigation of Neuheisel's participation in a March Madness pool in 2002.
An internal NCAA e-mail showed that Saum suggested investigators who were trying to co-opt one of Neuheisel's chums should consider going to the man's boss and saying he wasn't cooperating with the investigation.
Another favorite moment came when Price admitted the NCAA violated its own bylaw when it failed to tell Neuheisel it was going to grill him about allegations that he had taken part in auction-style betting pools.
I believe these two tactics can be found in the "Blackmail and Cheat" chapter of the NCAA Code of Investigative Behavior.
And I agree with Dave Ridpath that it's high time Price and Saum were "rewarded," the way Ridpath was, for their diligent adherence to NCAA practices and procedures.
By JOHN LEVESQUE
SEATTLE POST-INTELLIGENCER COLUMNIST
If the NCAA has a heart and a brain, it will promote Bill Saum and David Price, give them enormous raises and tell them they can't have anything to do with enforcing the NCAA's rules anymore.
That would please B. David Ridpath even more than the event that occurred Monday in King County Superior Court.
In the meantime, knowing that the NCAA agreed to pay Rick Neuheisel $2.5 million of a $4.5 million settlement has made Ridpath "absolutely giddy."
Ridpath doesn't like the NCAA.
More precisely, he doesn't like how the NCAA operates.
Even though his impressions of Neuheisel are of a guy who plays fast and loose with the truth, Ridpath is delighted the former University of Washington football coach has taken a bite out of the organization that purports to regulate college athletics.
"You would not believe how they jump on people and how they target people," Ridpath said yesterday from his office in Starkville, Miss.
Actually, after reading about NCAA tactics the past few weeks, I think I might.
"For years they have skewered people for not following the rules as they see them," Ridpath said. "... They hold people to a different standard, and yet when held to that same standard they throw money and try to spin themselves out of trouble."
Ridpath, an associate professor of sport administration at Mississippi State University, knows the skewer's sting as intimately as anyone. Four years ago, when he was athletic compliance director at Marshall University in West Virginia, he was run through and then slow-roasted over the NCAA's coals.
His story is fascinating because it's similar to what occurred at the UW, except for who took the fall and ended up suing the university.
In the case at Marshall, it wasn't the football coach. Bob Pruett is still going strong, even after his football program was hit with four years' probation by the NCAA. Instead, it was Ridpath, who held the position analogous to that of Dana Richardson, author of the infamous UW memo that said participation by athletic department personnel in "March Madness" basketball betting pools was permissible.
Ridpath never did anything as egregious. His "crime" was not being aware of a scam that allowed Marshall athletes to "earn" $25 an hour for doing little or no work at a company owned by a longtime booster. He had been hired to clean up a messy program, but he became the scapegoat when the university hired a pricey attorney to protect itself and its high-profile employees like Pruett.
Why do I believe him?
Because Marshall University promoted Ridpath and gave him a raise after it got slapped by the NCAA. That would tend to silence most people, but the NCAA dossier on Ridpath has a black mark next to his name, which means he isn't likely to get another job in the compliance field.
So he is suing Marshall and Pruett, he has testified before Congress and he's happy to talk to just about anyone else about the NCAA's excesses in rule enforcement. Since the NCAA doesn't have to abide by the sort of due process we're accustomed to seeing in the American system of jurisprudence, Ridpath says it is free to do just about anything it wants in investigating suspected doers of wrong.
Visions of thumb screws in a dungeon and firing squads at dawn float immediately to mind. Ridpath indicated it's not far from the truth.
"I've seen them make people cry, belittle people, use covert racism, tell lawyers to shut up and say they have no rights," he said. "It's unlike anything you've ever seen.
"They will ruin the reputations and careers of anyone who doesn't follow or who misinterprets the rules as they see them."
Ridpath said he believes he and Neuheisel were targeted because they didn't cave in.
"I was very vigorous in defending Marshall," he said, "and if you give the NCAA static, they don't like that. They will get you in the end because they know they can."
Ridpath finds particularly sweet irony in the NCAA's complaint that it wasn't able to mount a full defense in the Neuheisel trial because of a ruling by Judge Michael Spearman that arose out of a discovery that the NCAA had changed its bylaws but hadn't notified Neuheisel's defense team.
"I was not allowed to give my case, either," he said. "I was shot down as some incompetent nut job. ... When the NCAA took me down, it was a sad day for college athletics because I cared about the rules and I was shown the door."
Ridpath said nothing will change until the NCAA enforcement process is overhauled.
Starting with Price, the vice president of enforcement, and Saum, the director of gambling activities, would be fine with him.
The testimony from the trial over Neuheisel's lawsuit against the UW and the NCAA indicates Price and Saum do indeed embrace a systematic disregard for fairness and openness in investigating suspected violators and in applying punishment.
My favorite revelation from the trial involves Saum, who directed the early investigation of Neuheisel's participation in a March Madness pool in 2002.
An internal NCAA e-mail showed that Saum suggested investigators who were trying to co-opt one of Neuheisel's chums should consider going to the man's boss and saying he wasn't cooperating with the investigation.
Another favorite moment came when Price admitted the NCAA violated its own bylaw when it failed to tell Neuheisel it was going to grill him about allegations that he had taken part in auction-style betting pools.
I believe these two tactics can be found in the "Blackmail and Cheat" chapter of the NCAA Code of Investigative Behavior.
And I agree with Dave Ridpath that it's high time Price and Saum were "rewarded," the way Ridpath was, for their diligent adherence to NCAA practices and procedures.
Ohio State, NCAA, 'Shameful Six' are embarrassments
By Grant FrekingBy Grant Freking-->
freking.4@osu.edu
Published: Friday, December 24, 2010Updated: Friday, December 24, 2010 00:12-->
Updated: Friday, December 24, 2010 00:12
Two days before Christmas, six Buckeye players played the role of the Grinch. They, along with the other parties involved, have completely embarrassed themselves.
The "Shameful Six" should be embarrassed. They sold jerseys, pants, shoes, Big Ten championship rings and Gold Pants awards. In a true sense of irony, Terrelle Pryor sold his 2009 Fiesta Bowl sportsmanship award. Many of them received discounted services (tattoos) in exchange for autographs.
Ohio State athletic director Gene Smith should be embarrassed. He said that the now-suspended players "stated in their interviews with us and with the NCAA that they felt those items were theirs, that they owned them, that they could sell them to help their families. … We were not explicit, and that's our responsibility to be explicit."
I wasn't born yesterday. Neither were the players. You'll never convince me that the players truly thought it was OK to sell those items.
I talked to Gene Smith about compliance in May. I asked him what the key to staying clear of the NCAA was. He gave me a one-word answer: "attitude."
"Our compliance office does a great job with education, not only our department but across the campus and in the community," Smith said. "So we have a compliance-conscious environment because I drive it, I talk about it all the time."
Maybe the "Shameful Six" just had the wrong attitude.
The NCAA should also be embarrassed.
OSU declared the "Shameful Six" ineligible when it self-reported the violations to the NCAA on Sunday. It was the NCAA who reinstated the six for the Sugar Bowl and instead suspended five of the six for the first five games of the 2011 season (Jordan Whiting is suspended for the season opener).
Why? Since 2007, OSU has not made it crystal clear that selling "apparel, awards and gifts issued by the athletics department" is a no. Which brings us back to the players thinking they weren't breaking any rules.
It gets better.
The NCAA bought that poppycock excuse and used lingo Smith hadn't even heard of: "NCAA policy allows [lifting] penalties for a championship or bowl game if it was reasonable at the time the student-athletes were not aware they were committing violations."
To a greater extent, it's the Cam Newton excuse. Sure, there was no clear-cut proof connecting Newton to his father's pay-for-play recruitment of his son. You'll never convince me that discussion of the highest bidder didn't happen at the Newton dinner table.
And let me get this straight: current USC Trojans can't play in a bowl game because former player and Heisman winner Reggie Bush took improper benefits five years ago?
Pryor, Dan Herron, DeVier Posey and Mike Adams are all not only eligible for the 2011 NFL draft, it's a virtual certainty that all four of them would be drafted.
Now, do their suspensions look bad on their resumes? Sure. Is it a big risk entering the NFL with no collective bargaining agreement deal in place? Definitely.
But the fact that they can jump ship after the Sugar Bowl and not have to worry about their suspensions is ludicrous.
Scandal-heavy and money-hungry college football is becoming more of an embarrassment by the day.
freking.4@osu.edu
Published: Friday, December 24, 2010Updated: Friday, December 24, 2010 00:12-->
Updated: Friday, December 24, 2010 00:12
Two days before Christmas, six Buckeye players played the role of the Grinch. They, along with the other parties involved, have completely embarrassed themselves.
The "Shameful Six" should be embarrassed. They sold jerseys, pants, shoes, Big Ten championship rings and Gold Pants awards. In a true sense of irony, Terrelle Pryor sold his 2009 Fiesta Bowl sportsmanship award. Many of them received discounted services (tattoos) in exchange for autographs.
Ohio State athletic director Gene Smith should be embarrassed. He said that the now-suspended players "stated in their interviews with us and with the NCAA that they felt those items were theirs, that they owned them, that they could sell them to help their families. … We were not explicit, and that's our responsibility to be explicit."
I wasn't born yesterday. Neither were the players. You'll never convince me that the players truly thought it was OK to sell those items.
I talked to Gene Smith about compliance in May. I asked him what the key to staying clear of the NCAA was. He gave me a one-word answer: "attitude."
"Our compliance office does a great job with education, not only our department but across the campus and in the community," Smith said. "So we have a compliance-conscious environment because I drive it, I talk about it all the time."
Maybe the "Shameful Six" just had the wrong attitude.
The NCAA should also be embarrassed.
OSU declared the "Shameful Six" ineligible when it self-reported the violations to the NCAA on Sunday. It was the NCAA who reinstated the six for the Sugar Bowl and instead suspended five of the six for the first five games of the 2011 season (Jordan Whiting is suspended for the season opener).
Why? Since 2007, OSU has not made it crystal clear that selling "apparel, awards and gifts issued by the athletics department" is a no. Which brings us back to the players thinking they weren't breaking any rules.
It gets better.
The NCAA bought that poppycock excuse and used lingo Smith hadn't even heard of: "NCAA policy allows [lifting] penalties for a championship or bowl game if it was reasonable at the time the student-athletes were not aware they were committing violations."
To a greater extent, it's the Cam Newton excuse. Sure, there was no clear-cut proof connecting Newton to his father's pay-for-play recruitment of his son. You'll never convince me that discussion of the highest bidder didn't happen at the Newton dinner table.
And let me get this straight: current USC Trojans can't play in a bowl game because former player and Heisman winner Reggie Bush took improper benefits five years ago?
Pryor, Dan Herron, DeVier Posey and Mike Adams are all not only eligible for the 2011 NFL draft, it's a virtual certainty that all four of them would be drafted.
Now, do their suspensions look bad on their resumes? Sure. Is it a big risk entering the NFL with no collective bargaining agreement deal in place? Definitely.
But the fact that they can jump ship after the Sugar Bowl and not have to worry about their suspensions is ludicrous.
Scandal-heavy and money-hungry college football is becoming more of an embarrassment by the day.
An inside look at the NCAA's secretive Committee on Infractions
From SIUpdated: Thursday February 18, 2010 12:29PM
George Dohrmann
For three days beginning on Thursday, a 10-person NCAA committee will convene in a conference room at a hotel in Tempe, Ariz. There are more than 125 NCAA committees that meet during a calendar year and this one is no different in that its members are largely unrecognizable collegiate bureaucrats. The NCAA Web site lists three attorneys, three law professors, two conference commissioners and two athletic department officials as members of this committee, and while some of them played or coached collegiate sports, none have done so in the past 20 years.
The NFL, NBA, NHL, MLS and Major League Baseball are dictatorships when it comes to penalizing its members; a single person decides on sanctions. The NCAA has this group of 10, known as the Committee on Infractions (COI), one of the most powerful, yet least examined, entities in American sports. Most people could not name a single member of the COI or tell you how it comes to its decisions. It goes about its business in relative obscurity, its deliberations kept secret, its findings conveyed mostly via press releases. Rarely has so little been known about a group that wields such authority.
The spotlight rarely finds the COI, which makes the hearing in Tempe unique. Among the cases under review is the biggest to come before the committee in years, one that will bring media attention and fan scrutiny:
USC.
USC.
The NCAA has investigated allegations against the Trojans athletic department since 2006, one of the longest probes in the association's history. The possibility of major sanctions for the school has loomed in the background for years, the bane of its supporters and a beacon for its critics. Allegations include claims that 2005 Heisman Trophy winner Reggie Bush received improper benefits from multiple agents, including the use of a house for his family. Former USC basketball star O.J. Mayo, in his one season with the Trojans, also reportedly received money and gifts from an agent, and, most recently, investigators looked into a car driven by but not owned by running back Joe McKnight.
Given the profile of the school and the athletes involved it is a landmark case, one sure to stand as a litmus test for the NCAA's unique brand of justice. It also raises questions about the mysterious committee that acts as the NCAA's judge: Who are the members of the COI and how did they land on the committee? How do they review allegations like those against USC? And, perhaps most important, how do they determine what penalties, if any, to hand down?
The NCAA does not disclose the individuals who will hear a specific case, and it is common for COI members to miss a hearing and/or be replaced by a former member. Still, it is a safe bet that those judging USC in Tempe will boast impressive credentials. The COI chairperson, Paul Dee, is the former athletic director at Miami and a professor at that school. Britton Banowsky and Dennis Thomas are the commissioners of Conference USA and the Mid-Eastern Athletic Conference, respectively, and Missy Conboy has worked in Notre Dame's athletic department for 22 years. Temple law professor Eleanor Myers is an expert on legal ethics, and Rodney Uphoff, a professor at Missouri, is a former defense attorney who helped represent Oklahoma City bomber Terry Nichols.
Per NCAA guidelines, two of the 10 members must be women and three are "public" representatives, usually attorneys or former judges unaffiliated with a school or conference. The three public representatives on the COI roster are all lawyers, the most notable being Roscoe Howard Jr., a former U.S. Attorney.
Among the individuals judging USC will be Josephine Potuto, a tiny woman with red hair who teaches law at the University of Nebraska. (She confirmed to SI.com that she would be Tempe.) Potuto might be the smallest person in the room, but she will also be the most senior, having served on the committee since 1999. She is the person USC athletic director Mike Garrett, school president Steven Sample, and the others representing the school should fear the most as she is a fierce questioner and unafraid to call out school officials who attempt to massage the truth.
Hearings are closed to the public, transcripts of the proceedings are kept confidential, and COI members are forbidden from discussing cases. But Potuto's grilling of former basketball Georgia coach Jim Harrick in 2004 is legendary among followers of the COI, and in a 2008 Florida State hearing -- the transcript from which was transmitted to the university in a way that made it subject to open record laws -- she repeatedly cornered those defending the school.
When recruiting COI members, Potuto looked for people with "gravitas," which she says includes fearlessness in the face of a challenge from a high-profile coach or administrator. "My experience with Jo and the rest of the committee is that they want to be fair, but they won't do an institution any favors and they dig down pretty deep," says Michael Rogers, who represented Baylor in its 2005 hearing.
That Potuto will review a high profile case involving agents funneling money to athletes is fitting, as it was her comments on that issue that brought her to the attention of the COI. At a conference in 1998, Potuto listened as former North Carolina basketball coach Dean Smith and Big Ten commissioner Jim Delany bemoaned how agents were funneling money to basketball players. Potuto stood up and said it was interesting that a little money going to the players was such a huge concern given how much the NCAA profited off those same kids. Immediately after, a COI member approached her. "I think they liked that I was willing to challenge people who are respected in athletics," she says.
The most common way to get on the committee is to know someone on it or to impress when representing a school. Alabama law professor Gene Marsh, who served from 1999 to 2008, was asked to join after arguing on behalf of the Crimson Tide in a 1998 infractions case.
COI members will tell you it is a thankless (and unpaid) job. They meet, on average, six times a year for four days at a time. Each case requires about 20 hours of reading and a complex hearing like USC's can last 12 hours or more. "There are plenty of people who get on the committee and pull the rip cord early because they don't realize the time commitment required," Marsh says.
Not Potuto. Her longevity and embrace of the work stands out. Followers of the committee say anonymously that if they could grant her a lifetime appointment (members are limited to three, three-year terms) they would, and they predict that she will loom large during the proceedings in Tempe.
For that, USC has, coincidentally, the rule book to blame.
COI guidelines require a committee member to recuse his or herself when a school from the same conference is under scrutiny. Potuto's final term ended in 2008, but she was asked back for the USC case, likely as a replacement for Oregon law professor James O'Fallon.
In other words, the toughest person in the room wasn't even supposed to be there.
In other words, the toughest person in the room wasn't even supposed to be there.
Prior to arriving in Tempe, Potuto and the rest of the COI received a case file detailing the infractions the NCAA enforcement staff has concluded were committed by USC, as well as any response by the school. This could be called evidence -- it often includes transcripts of interviews and other supporting documents -- but the COI rarely determines whether or not a rule was broken, a common misconception. By the time a school appears before the COI it is usually in agreement with the enforcement staff on the violations committed. USC officials (who declined to discuss their case with SI.com) might take exception to the severity of some violations, but the two parties are likely to agree on the rules broken.
"One misconception is that a [COI hearing] is like a trial we would see in our judicial system," says Rogers. "It is very different." In an interview, Dee, the COI chairperson, referred to the process as "quasi-judicial" and "in a way like arbitration" and similar to an "administrative hearing," the variety of descriptors a testament to the unique nature of the COI's work.
Interpret may be the best description for what the committee does. They review the violations and then, while listening to remarks from school officials and others, they interpret the core cause of the misdeeds and whether the university's actions before and after the wrongdoing surfaced were sufficient. Thus, the task of the school officials present at a hearing is to push their own interpretation.
Interpret may be the best description for what the committee does. They review the violations and then, while listening to remarks from school officials and others, they interpret the core cause of the misdeeds and whether the university's actions before and after the wrongdoing surfaced were sufficient. Thus, the task of the school officials present at a hearing is to push their own interpretation.
In the Florida State case, university president T.K. Wetherell attempted to paint the widespread cheating by athletes in several sports as the actions of a "rogue tutor," saying: "We don't really believe they cheated. They got inappropriate help." That may seem like a clever muddling of the facts, but a rogue tutor isn't as serious in the eyes of the COI as institutionalized cheating. Though the COI sanctioned the Seminoles -- including vacating wins in 10 sports and taking away three football scholarships -- it concluded that the school did not knowingly allow athletes who cheated to compete.
At the start of a hearing, the school under review and the NCAA enforcement staff make opening remarks. Then the COI members pose questions, and it is during this period when cases are won and lost. Depending on who is among the contingent from USC (former football coach Pete Carroll and Tim Floyd, the former basketball coach, reportedly plan to attend or participate via video conference), this could be the hearing's most dramatic stretch, with Potuto and others peppering them with questions and scrutinizing their responses.
The enforcement division's exact findings regarding USC won't be made public until after the COI's decision, but the committee is expected to conclude that Bush and Mayo received improper benefits from agents. Regarding Mayo, the school did an inadequate job monitoring the basketball program, a supposition supported by the university's imposition of sanctions on the basketball team in December, including a postseason ban this season. The school allowed Rodney Guillory, Mayo's handler, into its program despite the fact that the NCAA deemed him a runner for agents in 2000 when he paid the airfare for a USC player. The COI would surely have sanctioned the Trojans if the school had not taken action against itself, and it could still penalize the program further.
USC's interpretation of violations committed by football players would appear to be very different. Garrett, the Trojans' athletic director, said last month that the school had "some arguments" to make before the COI on that front. He is not likely to challenge that rules were broken but rather whether USC should be held responsible for the actions of Bush, his family, and the agents.
It is a defense that hits at a thorny issue for the NCAA: how much to hold schools accountable for the actions of the agents who court its players? On one hand, it is unreasonable to expect a school to monitor where all of its athletes' families live, what their parents drive and whom they might be receiving money from? On the other, Bush was not just any player, and it appears the agents operated right under USC's nose. According to Yahoo! Sports, the NCAA requested a copy of a photo of sports agents Lloyd Lake and Michael Michaels posing with Pete Carroll in the locker room after a game. USC also cleared Bush in 2005 to work as a summer intern for sports marketing agent Mike Ornstein, who was reportedly allowed on the sidelines for some USC games. Ornstein, like Lake and Michaels, allegedly provided Bush with improper benefits.
Many major infractions cases often come down to simple question -- what should the school have known? In Florida State's case, the school avoided the dreaded "lack of institutional control" label, which carries the harshest sanctions, and USC will hope do the same while in the tricky position of arguing that there were institutional failings in one sport (basketball) but not in another (football).
"It is a hard sell," says one lawyer with ties to the case. "It's the "what-more-could-we-do defense, and the problem with that is what a school could have done is open to a wide interpretation."
A widely held perception about the COI is that they go soft on cheaters, particularly high-profile schools. Pick any major infractions case from the last decade -- Ohio State in 2006, Alabama in 2002 and 2008, etc. -- and you can find a large segment of people that think the cheaters got off too easy and that the COI selectively spared a big (and profitable) program.
Potuto, Dee and others say that is folly. They judge a case on its merits, they contend, the profile of a school never comes under consideration. And yet it is hard not to note that the NCAA may have already done USC a huge favor.
Potuto, Dee and others say that is folly. They judge a case on its merits, they contend, the profile of a school never comes under consideration. And yet it is hard not to note that the NCAA may have already done USC a huge favor.
In July 2008, the COI recommended sweeping changes in the severity of penalties assessed, including giving the COI the ability to impose postseason bans, hefty fines, bans on television appearances, and other penalties that hadn't been used in years. There were other recommendations, which when taken in total meant a seismic overhaul of how the NCAA penalizes cheaters.
A case like USC's, where the finding of a lack of institutional control is a real possibility, would seemingly be ripe for the deployment of the new penalties, and the perfect way to send a message to the rest of the association. "When people realize there is not a risk of severe penalties, they take chances," Dee says. "We wanted to put risk back on the table by dusting off some of these dormant penalties."
One problem: They are still dormant. Nearly 20 months after receiving the COI's recommendations, the Board of Directors has yet to ratify them. The COI may wish to throw the book at USC, but its hands will be tied by the slow-turning wheels of the NCAA machine. As a result, questions about whether justice was served will persist regardless of how the COI rules on the Trojans.
"The porridge will always be too hot or too cold," says Marsh, the Alabama law professor and former COI chair. "Some believe we are too harsh, others say too soft. No one ever says [the COI] got it just right."
At the conclusion of the hearing in Tempe, the COI will gather and begin talking through the issues until a consensus is reached on what penalties, if any, to hand down. Dee will then assign one member to write an opinion, which will be passed among the others to approve. The process takes about between eight to 10 weeks, meaning that sometime in the spring USC will know its fate. On that day, the debate over whether justice was served will rage on radio shows, blogs, and at water coolers across the country.
The COI, meanwhile, will drift back into the shadows.
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