Sunday, June 13, 2010

More on the (outrageous) NCAA sanctions against USC

I hate to linger on the NCAA sanctions because everything is still very much in the air until the USC appeal is heard. But the more I investigate and the more commentary I read and the more evidence I see it has become infuriatingly clear that the NCAA did a hatchet job. Throughout the report from the Infractions Committee there mountains of weak evidence, untrustworthy witnesses and assumptions up the yin yang.

Here are some things you should look if you want to truly understand how outrageous the NCAA's investigation and conclusions are:

1) Two youtube videos looking at the transcript of Lloyd Lake's testimony to the NCAA. They detail discrepancies in Lake's testimony and how the NCAA asked leading questions to get the information skewed how they wanted it (and even helped him out a couple of times).

2) The 169 page response that USC submitted to the NCAA back in December, 2009. Keep in mind that this was given to the NCAA before the sanctions were revealed and even before the hearing on infractions in February. Yes, it's long, but at the very least it's worth reading the first few pages and skimming the rest.

If you don't want to do that here's a quick excerpt:

In accusing student-athlete I and student-athlete 2 (and their families) of accepting impermissible benefits, the Staff has accepted at face value the allegations of the primary accusers, and summarily dismissed the explanations of the accused. This wholesale acceptance is unjustified, as the evidence supporting many of the allegations is corroborated by little or no testimony or documentation. 

The main accuser against USC and student-athlete l, agency partner A, has an extensive criminal record with multiple felony convictions, as well as a financial motive to provide a sensational story that damages USC. These facts are relevant in weighing his credibility. Some of agency partner A's most serious accusations are affirmatively disproved by the testimony of other witnesses and documentary evidence.

3) An interesting comment (from someone I can only assume is a lawyer) on the NCAA ruling and USC's strategy for appeal: 

Posted by DB on June 11, 2010 01:23 PM at 
I am astounded by the lack of evidence standards employed by the NCAA and I strongly believe that SC has the ability to use the CA Courts to get the major sanctions set aside if the appeal process excepts hearsay in support of sanctions. In fact on the pages 5 & 6 of the SC reply doc they bring up their right to due process which SC asserts was denied to it the by the NCAA. It is important to understand that the NCAA rules do not (can not) supersede state or federal law and SC sited Cason v. Glass Bottle Blowers Association of U.S. and Canada, 37 Cal.2dl34,143-144 as case law whereby this has already been adjudicated and established that associations must abide by Fair Process.
If a CA court rules that SC was denied due process it can invalidate the NCAA sanctions.
Another critical issue is the use of “Hearsay” as evidence which is essentially the basis of SC response to the NCAA assertions that Lake and others acted with the knowledge SC i.e. McNeal. As you will see below in the case of Tarkanian he asserted that he was denied due process and that the enforcement case was built on hearsay. While the NCAA has the right to discipline it was ruled that hearsay evidence was not admissible in infraction cases.
Can SC prove that the evidenced used to support major sanctions and a lack of institutional control meets the hearsay standard? If it can any sanctions based on that standard will have to be dismissed by law.
SC can get an injunction against the NCAA until the appeal process and court findings have been completed. SC can use the courts to rule on hearsay aspects of NCAA claims and if the courts rule that factual evidence does not support certain NCAA findings it can force the NCAA to set aside those rulings.
Essentially, SC can boil this down to those two issues and because there is already long standing case law they don’t have to litigate the whole case. SC can ask the CA courts to rule on due process and the hearsay standard.
I believe SC has already signaled to the NCAA that they will follow this path……

Just months before the 1976–77 season, the NCAA placed UNLV on two years' probation for "questionable practices." Although the alleged violations dated back to 1971—before Tarkanian became coach—the NCAA pressured UNLV into suspending Tarkanian as coach for two years. Tarkanian sued, claiming the suspension violated his right to due process. In September 1977, a Nevada judge issued an injunction which reinstated Tarkanian as coach. The case eventually made it all the way to the Supreme Court of the United States, which ruled in 1988 that the NCAA had the right to discipline its member schools, but required that due process be followed—effectively upholding the original 1977 injunction.[2]
In the decade between the original suspension and the Supreme Court ruling, it was revealed that the NCAA's enforcement process was stacked heavily in the NCAA's favor—so heavily, in fact, that it created a perception that there was no due process. The enforcement staff was allowed to build cases on hearsay, and shared few of their findings with the targeted school. The resulting negative publicity led the NCAA to institute a clearer separation between the enforcement staff and the infractions committee, as well as a system for appeals. Also, hearsay evidence was no longer admissible in infractions cases.[3]

4) An excerpt from the Congressional Hearing on the NCAA Infractions Committee (brought to my attention by BonesMcCoy on

108th Congress - Judiciary Committee Hearing on NCAA and failure to implement placement of independent judges as arbiters

These are notes from a house committee hearing in the US Congress on NCAA hypocrisy in the rules enforcement process. Most specifically, the US Congress was investigating:
"the NCAA has failed to take action on several recommendations of its own 1991 study, most notably, those relating to the hiring of independent judges to hear infractions cases and the opening of these proceedings to all. This hearing will examine those recommendations and the NCAA's decisions not to implement them. We will also examine the investigated individual's role in the process and their ability to participate fully in it. And we will examine the NCAA's restitution rule, which punishes member institutions in the event that student-athlete initiated litigation is ever resolved in favor of the NCAA"

From Page 117

I directly disagree with Roberts's contention that David Price, current NCAA Vice President for Enforcement, and his investigative staff are people who ''do not act out of animus, bias, or any personal vendettas.'' This is a point I made very strongly in my oral statement. In my direct and indirect experience ''in the trenches'' of college athletics for almost 20 years, my experience has been exactly the opposite. In what is supposed to be a cooperative and collegial process in reality could not be more adversarial and caustic. The enforcement staff is made up of mostly very inexperienced, low paid investigators who have an overwhelming amount of work. Many of them are thrust in hostile situations with the mantra to vigorously and sometimes viciously put down any type of resistance or defense to charges by the NCAA. Many times institutions just acquiesce to this pressure and put up little or no defense, lest they get blackballed by the investigators or the Committee itself for being uncooperative. The scales are heavily tipped in the enforcement staffs' favor and it simply is not fair or constitutional when you are not allowed to provide an effective defense. There is a better way.

To be fair, it is very difficult to really get to the bottom of things when you have limited power and the institutions are doing anything to protect their interests. Still, I believe the mistakes the enforcement staff and COI make are far more numerous that Potuto and Roberts state and many times I believe it is intentional. This intentional behavior is based on previous relationships, power of those getting investigated, potential vendettas, and quid pro quo. Examples like this add to the dysfunctional and imperfect nature of the process. Due to that I do not believe the process is remarkably accurate as Roberts attests. I only think it is reasonably accurate and I strongly believe that enforcement and the COI have tremendous incentive to pursue false or trumped up charges to protect the very aforementioned interests. Since the Committee is primarily made up of institutional staff members, the conflict of interest and potential for tampering is to much too high to ignore and it is ludicrous to think that it has never happened.

I heartily endorse Representative Spencer Bachus' of Alabama efforts to finally lift the ''shroud of secrecy'' on this patently unfair and unconstitutional process. The old saying is true, ''If you cannot regulate yourselves, then the government will.'' Perhaps this is an area where government intervention absolutely needs to happen, and probably will, unless changes are made.

In this area, the NCAA has been literally begging for a congressional inquiry for over a decade. Institutions and affected individuals are not going to stand for the process as is. Sunshine is desperately needed on the process and the NCAA is so knee deep in litigation challenging it that it can no longer go unnoticed. There have been significant changes regarding NCAA enforcement since Congress last reviewed it in the 1991 spawning from the Lee Report. Some of the more notable changes included the creation of the Infractions Appeals Committee, tape recording interviews, and putting outside of the association individuals on the Committee on Infractions and the Infractions Appeals Committee. Even with these developments, there are still significant changes that must happen to ensure this process operates with integrity and respect for all individuals and institutions.


Granted, the enforcement and infractions process is grounded in administrative law, not constitutional law. However, when dealing with institutions, reputations, and careers, constitutional due process and protections must apply or the government must make sure it happens. It cannot be reduced to blood sport when talking about someone's life and career. This is unfortunately usually done just to satisfy those who want a fall guy, while the one's really responsible continue to flaunt the integrity of higher education by cheating just win games.

It is an issue of fundamental fairness that all are guaranteed as citizens of America. The specter of NCAA investigations and sanctions can have far reaching negative effects on individuals and institutions involved. Therefore, past allegations and proven facts concerning the enforcement process including potential conflict of interest, use of secret witnesses, manufacturing evidence, and threatening employees of member schools during NCAA investigations and hearings are not keeping with the high values and integrity of intercollegiate athletics. A process that investigates itself presents on its face a major conflict of interest especially in the high stakes world of college sports. It is time to change it to provide fairness for everyone involved, including the enforcement staff and COI.

I believe that I convey workable solutions to a problem that has gone on far too long and one that needs to be fixed for college sports to survive in some semblance of an educational activity. The process as is does not allow for the real violations or violators to be uncovered. It is a mere facade to make believe that true enforcement is happening. However, it can be fixed. There are several modest and simple proposals that can upgrade this process, provide fundamental fairness, due process, and ensure that the bad actors that deserve to be punished are punished. Some of the suggestions for improvement I respectfully submit to the Constitutional Sub-Committee are:

6. Make all hearings public, open to the media, to include public disclosure of hearing transcripts. If the NCAA feels they are doing it right, a little ''sunshine'' will just add needed credibility to what is now nothing more than a cloak and dagger ultra secretive process. Potuto's contention that public hearings would damage the process and hurt individuals is simply a smokescreen to protect the ''on the cheap'' get it done quick process that exists now.

I do not share the optimism that Potuto and to a lesser extent Roberts have. I believe there are many more false positives and wrongful convictions via institutionalized scapegoating and sanctioned situational morality i.e. what some people do is permissible but what others do is not—even if it is the same thing. It is time to administer justice in a fair and equitable manner that ensures all, even the lowest common denominators, are protected under the constitution. I fully realize that nothing is ever perfect (although Potuto refuses to believe there is even the slightest flaw. She claims there is only miscommunication), but the current process is far from acceptable or even reasonable.

Before this NCAA report was released and the sanctions handed down, I maintained that based on the evidence USC would receive minor penalties because I believed the NCAA would rule with fairness and justice. I know now that I was wrong. Not in my assertion that the university deserved only minor sanctions, but in my belief in the NCAA. I will not make the same mistake again and I can only hope that USC takes the fight straight to the heart of the NCAA. This travesty of justice cannot be allowed to stand.

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