The Farce Known As The NCAA Committe on Infractions
Posted: Wed Dec 09, 2015 2:31 pmWhenever an NCAA member university is investigated by the NCAA, the institution (and all members of the NCAA) place an absolute trust in the fairness of the investigative process itself and strict compliance with the procedures and protocol that govern the NCAA. These processes/protocols are outlined in the rules and regulations which are adopted by each member school and the NCAA itself. At the core of any administrative hearing are two primary tenets: due process and strict compliance with the adopted rules/processes.
When SMU was recently sanctioned by the NCAA, there were many on this Board that felt/believed that the NCAA was on a mission to finally get Larry Brown, and that there was a presumption of wrong doing by SMU because it had ascended into the national spotlight too quickly. After all, many argued, SMU had a history of cheating and the Death Penalty era was proof of the lengths SMU would undertake to gain an unfair advantage.
So when the sanctions were announced against SMU and Larry Brown many people, including most national media observers, quickly concluded that the NCAA had done a thorough job and reached the right conclusion based upon the evidence and the processes that were afforded SMU. After all, the presumption is/remains that the NCAA and its investigative body- the Committee on Infractions (COI)- is fair and even handed and only issues punishment/conclusions when the evidence is overwhelming, clear and direct.
But what if I told you that the NCAA itself does not follow its own protocols and procedures? What if I told you that the COI uses evidence that was never part of the official record? What if I told you that the NCAA gives credence and weight to support a pre-determined result of guilt? What if I told you that before the NCAA the presumption of innocence which is part of the legal fabric of our Country, doesn’t exist before the NCAA? And what if I told you, that individuals within the NCAA are allowed to weigh in and participate in the punishment and findings when the rules and processes strictly disallow the inclusion of such individuals? To this, you and almost everyone else would say, “you have too much time on your hands and you’re disgruntled because your school is punished routinely for cheating. It’s time for you to move along and accept your punishment.” But alas, today I am not arguing for SMU. I am arguing against an agency that is internally flawed, prejudiced and hell bent to create its own rules to justify the findings it wants to make.
Ladies and gentleman, I present to you the University of Southern California and Todd McNair. What I am about to show you should send shivers down your spine and cause you to get angry. Why? Because the NCAA can and will destroy people. The NCAA and those who work internally for it will purposely disregard the truth to find guilt- not just on the evidence presented, but on evidence that should never be considered. “Counselor”, you would say, “that sounds un-American. The NCAA is a fine organization that furthers the academic and athletic endeavors of its student athletes and member schools. It exists merely to level the playing field and make sure everyone plays fair.” Funny, you mention playing fair ladies and gentlemen, because as I will show you, the NCAA is far from fair.
USC is a private school in California. Academically, it is a fine, fine University. Its football team is one of the most visible in college football. The mighty USC Trojans. O.J. Simpson, Ricky Bell, Lynn Swann, Marcus Allen. You don’t know them, How about Matt Lineart and Reggie Bush? Yes, those names sound familiar and here’s why. In 2006, the NCAA began investigating USC for alleged rules violations. For purposes of this story today, there are two names that are relevant to USC. Reggie Bush, who I will call “Football Player” and Todd McNair, who I will call “Asst. Coach.”
Sometime before 2006, the NCAA received word that Football Player had received improper benefits from a convicted felon named Lloyd Lake, who I will call “Convicted Felon.” Convicted Felon was a man with integrity as pure and white and mud. You see where this is going, don’t you? When you’re a Convicted Felon, well, you’re a convicted felon.
So Convicted Felon told the Committee on Infractions (COI) at the NCAA that Asst. Coach knew that Football Player was receiving benefits. COI directed the gist of its findings to a two-minute and 23 second call between Convicted Felon and Asst. Coach. Based on the evidence, the NCAA concluded that Asst. Coach knew of the improper benefits. However, when you read the actual testimony given by Convicted Felon, it is far from clear, what if anything, Asst. Coach knew. Nonetheless, in its report, the COI found that Asst. Coach knew about the improper benefits. The report further added, that Asst. Coach violated the NCAA ethical conduct legislation by providing false and misleading information regarding his knowledge of the telephone call and the NCAA violations associated with it. Furthermore, the report found that Asst. Coach falsely attested through his signature on a statement that he had no knowledge of NCAA violations.
Due Process and the NCAA: Is there really such a thing?
On December 7, 2015, the Second Appellate District (Div. 3) of the State of California, considered an appeal taken by Asst. Coach. Asst. Coach alleged that the COI findings and report contained false information that amounted to defamation. The opinion has not been certified for publication, but exists as a matter of public record. The case is styled, Todd McNair v. National Collegiate Athletic Association, B245475.
The following are quoted parts from the court’s recent opinion that establishes the points I laid out for you above:
1. “Nowhere in the COI or Appeals committee reports is there any evidence, other than [Convicted Felon’s] interview, that Football Player told Asst. Coach about the agency agreement or improper benefits. Hence, the interviews about the two-minute call appear to be the sole basis for the NCAA’s findings that McNair knew about the NCAA violations”;
2. “The COI report acknowledges that USC, Asst. Coach and the enforcement staff disagreed about the facts underlying the finding against Asst. Coach. Over the course of three and half pages, the COI report recites that McNair claimed there was no proof that he knew or ever met Convicted Felon or [his associate].”
3. “The COI consists of athletic directors, athletic-conference commissioners, faculty athletic representatives, judges, attorneys and professors who service voluntarily and not as employees of the NCAA. The NCAA bylaws require that only the members of the COI shall deliberate in a particular enforcement proceeding. The NCAA Bylaws require that the “COI shall excuse all others from the hearing and that the COI shall make its determinations of fact and violation in private.”
4. The opinion cites two members of the COI who had serious reservations about the evidence against Asst. Coach and whether he had direct knowledge. Another questioned the interview of Convicted Felon which was “choppy on his relationship with Asst. Coach and had difficulty being able to come up with his name until staff prompted him.” Another non-voting member offered that the “staff . .. has seemed to have fallen short with this investigation….”;
5. Another individual, Roscoe Howard, was an observer of the COI/USC proceedings. As an observer, policy/protocol prevented him from “directly participating in the adjudication of cases.” That didn’t stop Roscoe from giving his two cents. Not only did Howard speak at the deliberations (in violation of NCAA rules), he WROTE and SENT a FOUR AND A HALF PAGE email to members of the COI “strongly voicing his position about what should be done with respect to Asst. Coach.” But that’s not all, this legal scholar went further and said Asst. Coach “should have all inferences negatively inferred against him.” But wait, there’s more. To lend weight and credence to his position, Howard attached evidence that was not part of the official record, namely a LA Times article and information alluding to criminal events in Asst. Coach’s past.
6. When the COi was unable to reach a consensus, Rodney Uphoff, the NCAA Coordinator of Appeals, who could attend deliberations, BUT COULD NOT PARTICIPATE , sent this email: “Obviously this email is only going to you. I haven’t been able to sleep for 3 nights because I fear that the committee is going to be too lenient on USC . . . Howard and I are both concerned because the evidence in our view was overwhelming that he was involved in 2004 . . . I am working on a long memo summarizing the evidence…. Individuals like [Asst. Coach] shouldn’t be coaching; at any level . . . he’s a morally bankrupt criminal, in my opinion, and hypocrite of the highest order.”
7. “Neither Asst. Coach nor his attorney were made aware of these emails or given an opportunity to respond to them.”
8. In response to the lawsuit filed by Asst. Coach against the NCAA, the NCAA filed pleadings asserting that “most of the facts disclosed in the [COI] report are true.”
9. As noted, the “two minute call appears to be the sole basis for the NCAA’s ethics violation finding against [Asst. Coach]. Yet, a jury could reasonably conclude that [Convicted Felon’s] interview did not support the statement that [Asst. Coach] knew about NCAA violations.” The court further added, “[i]f a jury concludes the statement is false, this operative statement would be defamatory.” ;
10. With regard to the emails and evidence from outside the record the Court added,” [t]his evidence clearly indicates that the ensuing COI report was worded in disregard to the truth to enable the COI to arrive at a predetermined conclusion that USC employee [Asst. Coach] was aware of the NCAA violations.”;
11. “To summarize, [Asst. Coach] established a probability that he could show actual malice by clear and convincing evidence based on the COI’s doubt about [Asst. Coach’s] knowledge, along with its reckless disregard for the truth about his knowledge, and by allowing itself to be influenced by nonmembers to reach a needed conclusion.” ;
In conclusion, this should really [deleted] everyone off. Why this is isn’t front center of ESPN or some other outlet, I can only speculate. McNair/Asst. Coach will have his day in court and in my opinion, the NCAA is going to have its head served on a silver platter. The COI’s findings are flawed, and more importantly, the whole process was poisoned by the inclusion of evidence outside the record and the influence asserted by members not on the COI.
So now do you believe the NCAA was fair to Larry Brown? Do you understand now why the punishment was so heavy against SMU? Do you now question, the COI’s findings that LB knew, or should have known, about the alleged wrongdoing? Do you now believe, that the NCAA possibly/might have had it out for Larry Brown and SMU and perhaps the process isn’t as fair as we are lead to believe?
This is not conspiratorial. These are facts -- unlike the COI’s report which was “mostly . . . true”.
When SMU was recently sanctioned by the NCAA, there were many on this Board that felt/believed that the NCAA was on a mission to finally get Larry Brown, and that there was a presumption of wrong doing by SMU because it had ascended into the national spotlight too quickly. After all, many argued, SMU had a history of cheating and the Death Penalty era was proof of the lengths SMU would undertake to gain an unfair advantage.
So when the sanctions were announced against SMU and Larry Brown many people, including most national media observers, quickly concluded that the NCAA had done a thorough job and reached the right conclusion based upon the evidence and the processes that were afforded SMU. After all, the presumption is/remains that the NCAA and its investigative body- the Committee on Infractions (COI)- is fair and even handed and only issues punishment/conclusions when the evidence is overwhelming, clear and direct.
But what if I told you that the NCAA itself does not follow its own protocols and procedures? What if I told you that the COI uses evidence that was never part of the official record? What if I told you that the NCAA gives credence and weight to support a pre-determined result of guilt? What if I told you that before the NCAA the presumption of innocence which is part of the legal fabric of our Country, doesn’t exist before the NCAA? And what if I told you, that individuals within the NCAA are allowed to weigh in and participate in the punishment and findings when the rules and processes strictly disallow the inclusion of such individuals? To this, you and almost everyone else would say, “you have too much time on your hands and you’re disgruntled because your school is punished routinely for cheating. It’s time for you to move along and accept your punishment.” But alas, today I am not arguing for SMU. I am arguing against an agency that is internally flawed, prejudiced and hell bent to create its own rules to justify the findings it wants to make.
Ladies and gentleman, I present to you the University of Southern California and Todd McNair. What I am about to show you should send shivers down your spine and cause you to get angry. Why? Because the NCAA can and will destroy people. The NCAA and those who work internally for it will purposely disregard the truth to find guilt- not just on the evidence presented, but on evidence that should never be considered. “Counselor”, you would say, “that sounds un-American. The NCAA is a fine organization that furthers the academic and athletic endeavors of its student athletes and member schools. It exists merely to level the playing field and make sure everyone plays fair.” Funny, you mention playing fair ladies and gentlemen, because as I will show you, the NCAA is far from fair.
USC is a private school in California. Academically, it is a fine, fine University. Its football team is one of the most visible in college football. The mighty USC Trojans. O.J. Simpson, Ricky Bell, Lynn Swann, Marcus Allen. You don’t know them, How about Matt Lineart and Reggie Bush? Yes, those names sound familiar and here’s why. In 2006, the NCAA began investigating USC for alleged rules violations. For purposes of this story today, there are two names that are relevant to USC. Reggie Bush, who I will call “Football Player” and Todd McNair, who I will call “Asst. Coach.”
Sometime before 2006, the NCAA received word that Football Player had received improper benefits from a convicted felon named Lloyd Lake, who I will call “Convicted Felon.” Convicted Felon was a man with integrity as pure and white and mud. You see where this is going, don’t you? When you’re a Convicted Felon, well, you’re a convicted felon.
So Convicted Felon told the Committee on Infractions (COI) at the NCAA that Asst. Coach knew that Football Player was receiving benefits. COI directed the gist of its findings to a two-minute and 23 second call between Convicted Felon and Asst. Coach. Based on the evidence, the NCAA concluded that Asst. Coach knew of the improper benefits. However, when you read the actual testimony given by Convicted Felon, it is far from clear, what if anything, Asst. Coach knew. Nonetheless, in its report, the COI found that Asst. Coach knew about the improper benefits. The report further added, that Asst. Coach violated the NCAA ethical conduct legislation by providing false and misleading information regarding his knowledge of the telephone call and the NCAA violations associated with it. Furthermore, the report found that Asst. Coach falsely attested through his signature on a statement that he had no knowledge of NCAA violations.
Due Process and the NCAA: Is there really such a thing?
On December 7, 2015, the Second Appellate District (Div. 3) of the State of California, considered an appeal taken by Asst. Coach. Asst. Coach alleged that the COI findings and report contained false information that amounted to defamation. The opinion has not been certified for publication, but exists as a matter of public record. The case is styled, Todd McNair v. National Collegiate Athletic Association, B245475.
The following are quoted parts from the court’s recent opinion that establishes the points I laid out for you above:
1. “Nowhere in the COI or Appeals committee reports is there any evidence, other than [Convicted Felon’s] interview, that Football Player told Asst. Coach about the agency agreement or improper benefits. Hence, the interviews about the two-minute call appear to be the sole basis for the NCAA’s findings that McNair knew about the NCAA violations”;
2. “The COI report acknowledges that USC, Asst. Coach and the enforcement staff disagreed about the facts underlying the finding against Asst. Coach. Over the course of three and half pages, the COI report recites that McNair claimed there was no proof that he knew or ever met Convicted Felon or [his associate].”
3. “The COI consists of athletic directors, athletic-conference commissioners, faculty athletic representatives, judges, attorneys and professors who service voluntarily and not as employees of the NCAA. The NCAA bylaws require that only the members of the COI shall deliberate in a particular enforcement proceeding. The NCAA Bylaws require that the “COI shall excuse all others from the hearing and that the COI shall make its determinations of fact and violation in private.”
4. The opinion cites two members of the COI who had serious reservations about the evidence against Asst. Coach and whether he had direct knowledge. Another questioned the interview of Convicted Felon which was “choppy on his relationship with Asst. Coach and had difficulty being able to come up with his name until staff prompted him.” Another non-voting member offered that the “staff . .. has seemed to have fallen short with this investigation….”;
5. Another individual, Roscoe Howard, was an observer of the COI/USC proceedings. As an observer, policy/protocol prevented him from “directly participating in the adjudication of cases.” That didn’t stop Roscoe from giving his two cents. Not only did Howard speak at the deliberations (in violation of NCAA rules), he WROTE and SENT a FOUR AND A HALF PAGE email to members of the COI “strongly voicing his position about what should be done with respect to Asst. Coach.” But that’s not all, this legal scholar went further and said Asst. Coach “should have all inferences negatively inferred against him.” But wait, there’s more. To lend weight and credence to his position, Howard attached evidence that was not part of the official record, namely a LA Times article and information alluding to criminal events in Asst. Coach’s past.
6. When the COi was unable to reach a consensus, Rodney Uphoff, the NCAA Coordinator of Appeals, who could attend deliberations, BUT COULD NOT PARTICIPATE , sent this email: “Obviously this email is only going to you. I haven’t been able to sleep for 3 nights because I fear that the committee is going to be too lenient on USC . . . Howard and I are both concerned because the evidence in our view was overwhelming that he was involved in 2004 . . . I am working on a long memo summarizing the evidence…. Individuals like [Asst. Coach] shouldn’t be coaching; at any level . . . he’s a morally bankrupt criminal, in my opinion, and hypocrite of the highest order.”
7. “Neither Asst. Coach nor his attorney were made aware of these emails or given an opportunity to respond to them.”
8. In response to the lawsuit filed by Asst. Coach against the NCAA, the NCAA filed pleadings asserting that “most of the facts disclosed in the [COI] report are true.”
9. As noted, the “two minute call appears to be the sole basis for the NCAA’s ethics violation finding against [Asst. Coach]. Yet, a jury could reasonably conclude that [Convicted Felon’s] interview did not support the statement that [Asst. Coach] knew about NCAA violations.” The court further added, “[i]f a jury concludes the statement is false, this operative statement would be defamatory.” ;
10. With regard to the emails and evidence from outside the record the Court added,” [t]his evidence clearly indicates that the ensuing COI report was worded in disregard to the truth to enable the COI to arrive at a predetermined conclusion that USC employee [Asst. Coach] was aware of the NCAA violations.”;
11. “To summarize, [Asst. Coach] established a probability that he could show actual malice by clear and convincing evidence based on the COI’s doubt about [Asst. Coach’s] knowledge, along with its reckless disregard for the truth about his knowledge, and by allowing itself to be influenced by nonmembers to reach a needed conclusion.” ;
In conclusion, this should really [deleted] everyone off. Why this is isn’t front center of ESPN or some other outlet, I can only speculate. McNair/Asst. Coach will have his day in court and in my opinion, the NCAA is going to have its head served on a silver platter. The COI’s findings are flawed, and more importantly, the whole process was poisoned by the inclusion of evidence outside the record and the influence asserted by members not on the COI.
So now do you believe the NCAA was fair to Larry Brown? Do you understand now why the punishment was so heavy against SMU? Do you now question, the COI’s findings that LB knew, or should have known, about the alleged wrongdoing? Do you now believe, that the NCAA possibly/might have had it out for Larry Brown and SMU and perhaps the process isn’t as fair as we are lead to believe?
This is not conspiratorial. These are facts -- unlike the COI’s report which was “mostly . . . true”.
