NBA Players’ Association Must Hire Don Fehr Now

This is the most important thing that the NBAPA will ever do. They need to move beyond the cloistered, home-boy environment which they knew as teenagers, and hire the brightest, most effective players’ association executive director which American sports have ever known (with the exception of Marvin Miller) whose name is Donald Fehr. Yes, he’s working for the NHL players. And yes, the NBAPA would need to pay him, very well.  But he’s worth every penny, and they need to do it immediately.

Just look at the contracts he did — guaranteed contracts — for MLBPA.  Fehr is a genius, and the NBAPA need him badly.  Owners in every sport know about Don Fehr. It’s only the players who are not sufficiently well-informed, with the exception of Blake Griffin, who “gets it”.  The minute that Fehr is hired, the owners will cower. And then, watch out.

And the amazing thing? Fehr is completely honest. And he’s so good, it drives the owners nuts. Look up the history of the last NHL players’ association negotiations; the first thing the owners did was go after Fehr, by claiming they would not negotiate with him in the room. That went nowhere, because the NHL players knew that the NHL owners were negotiating buffoons, when compared to Fehr.

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UNC Academic Scandals Will be Reviewed Using Wainstein’s ‘Prudential Concern’ Standard?

This is pretty rich. UNC, having gone through the embarrassment of having hired a former governor to help cover the tawdry decade-long trail of academic fraud, has now landed on the notion of hiring Ken “Prudential Concern” Wainstein, he of the Miami “independent” review.  (See; see other earlier posts,   Wainsteirn Authorized NSA surveillance ;  The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy.;;  Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations

Most people don’t understood what Wainstein did. He competently figured out that there wasn’t a damned thing he could find anywhere in writing (and he looked everywhere) which had been violated when the NCAA Miami investigator hired an outside attorney. But note what he did: instead of telling NCAA Executive Director Emmert that he’d blown the whole thing out of proportion, and that nothing serious, really, had been done wrong, he pulled a new standard of conduct out of the air: that the NCAA’s investigator had violated “prudential concerns.” Yes, prudence was at the heart of Wainstein’s finding in that case. Prudence: the kind of thing you violate when you send out invitations to your Flag Day veranda tea party and the invite is set in the wrong font.  Wainstein was also so bold as to suggest that the NCAA investigator had violated member’s expectations. Member expectations? How in the world could Wainstein have had any possible perception as to member expectations within a fractious, stubborn, sometimes warring, but certainly disparate set of members such as those who make up the NCAA? The notion was, and remains, fatuous.

Wainstein gave cover, though, to Emmert, rather than bluntly telling him in his report: I don’t have a clue what you were so worked up about.

Emmert had boxed in Wainstein by his hyperventilated, pre-investigation, jump-the-gun comments; Wainstein then gave Emmert the “white-shoe law firm” cover as regards the Miami investigation, but he also left Emmert boxed in.

Because if Wainstein’s Miami-related review is to be believed, he set just about the highest possible standard for reviewing human conduct one could choose:  was it prudent? This is a higher standard than: 1) is one of the parties guilty of criminal conduct?; 2) did one of the parties engaged in negligent behavior (measured by a preponderance standard)?; 3) was there a written in-house NCAA employee standard of conduct which was violated? (there was not, according to Wainstein); 4) was there an in-house, unwritten, de facto standard of NCAA employee conduct which was violated? (it appeared that the hiring of the investigator which Emmert had earlier squawked about was consistent with past practice in that office, but Wainstein, curiously, never bothered to follow up on that lead); or 5) were there any professional ethical standards violated? (there were, again, no violations found by Wainstein.) 

So that’s Wainstein’s extremely high standard, to be applied to the UNC cesspool. I’m not optimistic, but if Wainstein has his ‘prudential conduct’ notebook with him, will he find (as he should) that, for example, the former governor of North Carolina violated that “prudential concern” standard, with impunity?

Prudence. Did it accord with kindness, etiquette, good-heartedness?

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How Rich Rod Should Fight Saban and Bielma “Slow-Down” Rules Proposal

Coach Rich Rodriguez of Arizona is none too pleased about the NCAA Football Rules Committee’s new recommended rule change – which still must be approved by the NCAA Playing Rules Oversight Panel on March 6 — which would give defenses 10 seconds to substitute on every play. Offenses would not be able to snap the ball until 29 seconds remained on the play clock. The only exception would be the final two minutes of each half.

The proposal jeopardizes Rich Rod’s up-tempo style. And it’s been recommended by a Rules Committee which has Nick Saban of Alabama and Bret Bielma – both more old-style coaches known as not in favor of the fast-paced football played at Arizona, Oregon, Indiana and many other places.

Rich Rod needs to go on the offensive:

1) What safety data supports the move? The proposal should have empirical data which supports the alleged “safety” motive behind it. No safety justification has been explained.

2) Get the NCAA Medical Director to review the proposal: Rich Rod needs to ask the NCAA’s medical director to take a position on whether this proposal will make the game safer, and where it ranks in terms of other changes which might be considered.

3) Suggest a rules-safety Blue Ribbon Panel: Rich Rod should suggest a Blue Ribbon panel be appointed, consisting of numerous football meddical safety experts along with administrators, students, and fans – which should be tasked to submit a thorough Blue Ribbon report evaluating all options.

4) Point to relevant history:. When football injuries and deaths multiplied in the late 1800’s and the first years of the 20th century, all proposals to make the game safer were directed at opening up the game. Walter Camp and others charged with finding some solutions to increase safety wanted first to widen the field; Harvard resisted that notion, because it had just finished, in 1903, building its’ “huge” new 35,000 seat stadium, which did not have enough room to widen the field.

This forced Camp and the others to look at other options — all of which were meant to “open up” the game, to remove opportunities for the “pile-ups” of bodies which caused injury. The forward pass was adopted, the game allowed four downs to get a first down, and the first down distance was lengthened to ten yards.

5) Other history might be relevant: Suggest bringing back the pre-WWI non-platoon system. Before WWII, the player could enter or leave a game only once per quarter. That rule was changed because of the dearth of male students (players) during the war, and the frequency of substitutions increased with some other rules changes in the fifties.

5) Will jeopardize NCAA defenses in concussion lawsuit: Any proposal which purports to promote safety but which has zero empirical data to support the change creates a serious risk of NCAA ridicule, within the Arrington lawsuit which claims NCAA concussion liability (and other lawsuits which will arise), for continuing to show little or no factual foundation for safety policy-making.

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NCAA Decision Shows Clemson AD Dan Radakovich Would “Taint” Football Championship Selection Committee

Dan Radakovich

Dan Radakovich (Photo credit: Wikipedia)

The new College Football Championship needs to appoint a selection committee of top leaders, with impeccable judgment and integrity, and rumored appointment Condi Rice fits that bill. In contrast, current rumored candidate Clemson AD Dan Radakovich is the wrong person for the job.

The fact that Radakovich was Georgia Tech’s Athletics Director in 2011 when the NCAA found GT guilty of major violations should not, by itself, necessarily disqualify him from serving on this prestigious selection committee.

But the NCAA Committee on Infraction’s GT decision is one of a very tiny number of such “major violation” decisions where the athletic director (Radakovich) was a major violator. Most major violation cases involve players or coaches who have somehow broken the rules. In contrast, the Georgia Tech major violation directly arises from illegal actions taken by Radakovich while he led the school’s actions during the investigative stage.

First, look back at the report by Attorney Ken Wainstein concerning the “prudential concerns” violations he found, upon investigation (at the request of NCAA Head Emmert) of NCAA staffer conduct in the UMiami case. Wainstein found that the hiring of outside counsel by the staffer violated “prudential concerns.” But the staffer had long since (before Wainstein’s review) been fired by the NCAA, not because he violated “prudential concerns”, but because of a much more egregious and fundamental “process” violation: his action directly and intentionally contradicted a specific order from his superior that he not hire outside counsel. “Disobeying” an explicit order led to immediate firing. That staffer was insubordinate.

The NCAA GT decision shows that Radakovich was similarly insubordinate to his superior at the NCAA by intentionally disobeying an explicit order from the NCAA investigator about how Radakovich should handle confidential information. And Radakovich’s insubordination had a direct impact upon a subsequent strange and 180-degree “change of story” by one of the players. Here are the brief facts:

In November 2009, the NCAA contacted a GT Compliance officer with information that an “agent” had been spotted somewhere in the GT environs, and that several GT football players may have received free athletic clothing from that agent or one of his runners. The NCAA staffer explicitly told the GT Compliance officer that this information about agent actions could be revealed only to the GT President and AD Radakovich — and no one else.

Incredibly, only ten days later, AD Radokovich, Head Football Coach Johnson, the GT Compliance Office and the football player in question all sat in one room for a meeting. And they spoke in detail about the fact that the NCAA had information that an agent had been present and had provided free clothing to the athlete in question.

The result of this meeting?: the player in question reversed his prior admission that he’d received the clothing. That is, prior to the meeting he was forced to attend with the AD, Coach and Compliance chiefs at GT, that player had admitted that he’d gotten free clothing. After the meeting, he denied that fact.

Radakovich and the compliance officer admit that they both knew that they knew they had had a duty to keep the information confidential. Instead (to use the NCAA’s words) they “tainted” and “hindered” the NCAA investigation.

Pre-Emptive Meeting: The NCAA COI decision (which was later appealed, to no avail, by GT and Radakovich) made much of this “pre-emptive” meeting which Radakovich and Johnson had with the player — after having been explicitly told that the information should be kept completely confidential — and how that prevented the NCAA from being able to make any final determination as to whether the clothing was “illegally” gotten from an agent or his runner.

Hindered the Committee: The COI found that “the staff members provided, before the NCAA could conduct their interview, information about what would be discussed in the interview,”[and that]“these actions impeded the enforcement staff investigations and hindered the committee in getting to the truth in this case. Otherwise, this case, as it pertains to the football program, would have been limited to impermissible benefits and preferential treatment violations.

Let’s stop and think about this meeting, in a way that someone at the NCAA must have seen it. These are probably the two most powerful Athletics figures at GT –the AD and football coach (along with the compliance head) – in a room with the young player. Think he’s scared? Think he knows what’s expected of him? — maybe to shade the truth? And what of the thoughts running through the head of compliance?: he had clearly told Radakovich that the NCAA had given explicit instructions not to pass on the information. Yet AD Rasdokovich nonetheless either set up the meeting, and/or chaired it in person. The NCAA recognized, implicitly, when finding that the investigation had been “hindered” and “tainted”, that the AD probably didn’t have to say a word, since solely the presence of all the biggest of GT Athletics “big shots” was likely enough to intimidate the player. The circumstances suggest that Radakovich may have suborned untruthful testimony by the player.

So it’s not simply that AD Radakovich engaged in deliberate, knowing conduct which directly contravened not just several NCAA bylaws, including Bylaw 10.1. It’s more profound than that: Radakovich countermanded (just like that NCAA staffer on the UMiami case who was fired for insubordination) an explicit, case-specific order by the NCAA.

It’s worth stopping here. The NCAA didn’t hesitate to consider all the circumstances (using “circumstantial evidence”) to explicitly find (by a “close call”) that in this case the Player “told the truth” in his “first” version, but not in his “second” (i.e., post-meeting) version.

But the NCAA refused to make a parallel assessment of the circumstances to thoroughly evaluate the ethics of Radakovich’s actions, even though those circumstances suggest, more probably than not, that Radakovich engaged in intentional acts meant to subvert the effectiveness of an entire ongoing NCAA investigation, in circumstances where he had every motive to engage in such illicit behavior in order to have GT avoid sanctions. But this “cupcake”deference to ADs and Coaches (consistent with my notion that, in the minds of any COI, “ADs and Coaches never lie — players do”) is not uncommon, where the NCAA “members” are not the players, but the coaches and ADs.

The COI cited GT for a lack of cooperation during the investigation and a failure to meet the conditions and obligations of membership (among other things.) GT was given four years’ probation, a $100,000 fine, and vacation of the 2009 ACC title game. They also imposed upon Georgia Tech’s athletics operation an order of “Public reprimand and censure.”

Finally, and as is common, the COI reflexively ordered all kinds of rules “education”, including the requirement that Radakovich attend a mandatory NCAA rules education seminar in 2012 (even though there was no evidence that Radakovich’s intentional acts were the result of any “misunderstanding” of the rules): ” The director of athletics, the head football coach, the compliance director and the academic advisor shall attend an NCAA Regional Rules Seminar in 2012.”

Days after the COI decision, Radakovich took a “we-did-nothing-wrong” stance.

“There were a number of people in that room today who watched that game on television like millions of others. The ones who were there certainly were disappointed, but the lesson moving forward is how the actions of a few can affect many. That’s something coach Johnson really stressed to that group. We need to utilize this not only with our football team and our men’s basketball team, but also all of our teams as a learning experience moving forward and how important it is to when you’re a part of a team, to put that team ahead of anything that comes your way and be up front and open with our compliance process.”

Other comments, post-decision, by Radakovich:

1. “We cooperated fully during process.”  (Compare this to the “pre-emptive meeting”,  “tainted” evidence, or “hindered” [access] to the truth” findings by the NCAA.)

2. “We don’t agree with the report and its findings.”

3. “Georgia Tech should not be placed in a position where its integrity is challenged.”

4. “We disagree but we will move forward.”

Contrary to these assertions, there are many indications that Radakovich’s entire department was, in 2011, completely out of control. The COI found, as just one example, “The former general counsel was not the only person… who conveyed a combative attitude toward the investigation. The [NCAA Investigator] …. needed supervisory support at some interviews because of the attitude of the institution’s representation.” In addition, the Head Basketball Coach was fired prior to the NCAA decision, and violations in both football and basketball operations were addressed in the COI decision.

Radakovich is, apparently, a man comfortable in his own sin. But his behavior in these events, as a center-stage actor in a major violation involving subversion of the process which all members schools have agreed to, should make anyone very uncomfortable about the prospect of having him involved in any highly sensitive, nationally-oriented selection process. In fact, the clearly unethical behavior exhibited by Radakovich, along with similar major ethical breaches recently by Jim Tressel (fraud) and Jo Pa (concealment of evidence), are three major reasons why the entire Self-Reporting obligation which is the linchpin of the NCAA framework must now be presumed broken.

More to the point, if Radokovich will, as he did at GT, intentionally breach confidences he had a clear professional duty to maintain, should he be entrusted with highly confidential, if not publicly volatile information developed or discussed by the selection committee? If he will engage in efforts to illicitly “taint” or “hinder” process or evidence, is he suitable for a selection committee which must be beyond reproach? Isn’t the mere presence of this “taint” from the GT decision enough to disqualify him from consideration for the selection committee?

Finally, Radakovich intentionally “blew up” the team to which he had a higher duty: a “team” which should’ve been formed, cooperatively with the NCAA, and which should have included Radakovich, to investigate any GT violations. Instead, he subverted that team, apparently for his own interest. And he still apparently fails to comprehend the nature of gravity of his violation.  Radakovich: a team player?


Posted in Dan Radakovich, Football Selection committee, Jim Tressel, Jo Pa, NCAA Enforcement, NCAA Investigation, NCAA sanctions | Tagged , , , , , , , | Leave a comment

Weiner, Braun, MLB Owners, and Rutgers’ White-Shoe Whitewash: Doin’ The Same Thing Again?

Weiner Again: Anthony Weiner, current NYC mayoral candidate, told us that the odd behaviors were behind him when he resigned from Congress two years ago after news leaked of his creepy online sexual behavior and photos.


But they’re not behind him, which also may be the newly-accurate way to describe New York city voters after these recent ‘Carlos Danger’ revelations. After all Anthony, you’re doin’ the same thing AGAIN?

Braun Again: No explanation needed. Ryan, you’re doin‘ the same thing, AGAIN?


Rutgers, Again – and President Barchi Buys a White-Shoe Whitewash: The introduction to Skadden Arps’ July 22 “Rutgers Case Study and Recommendations” slyly pronounces: “this is a forward-looking review.’

Which I guess is white-shoe-code for “we’re just gonna ignore that stench and “Ack-SENT-choo-eight the POS-a-tive — because hapless Rutgers President Barchi thinks his job is on-the-line, and after all he’s the one who is paying us.” Forward-looking, in hopes that no one will look back.


This ‘White-Shoe-Whitewash’ trick is taken from the NCAA’s Mark Emmert, who bought a similarly high-priced White-Shoe Whitewash from Cadwalader, and duly received  Cadwalader’s fatuous report about the NCAA’s UMiami alleged transgressions. (See my posts, I Repeat: NCAA “Enforcement Review” by Cadwalader Found NO Violations,; and Badly Flawed NCAA Enforcement Review Uses Ouija Board – Not Rule of Law- to Find Violations)

The Skadden case study authors at least had the moral heft to actually include their  pithy summary of the squarely-on-point Rutgers 2008 ARC report:

“The ARC Report concluded that, at least with respect to the factual matters involving the Athletic Department, “the university operated with inadequate internal controls, insufficient interdepartmental and hierarchical communications, an uninformed board on some specific important issues, and limited Presidential leadership.”

Anyone who has followed the Mike Rice, Tim Pernetti, Julie Hermann, President Barchi circus of mis-management and deceptions has to read the above summary and conclude: Rutgers, you got caught  doin’ the same thing AGAIN!

MLB and PEDs, Again: I’ve pointed out in an earlier post my skepticism about MLB and the PED scandals. (Braun Case Lesson: Selig, Players, Owners Knew Testing Process is Dog & Pony Show, and Ryan Braun: I Did Not Have Sex With That Woman. Plus, Tanya Harding and Rosemary Woods Did It.)

MLB (and MLBPA) looked the other way for years, back in the 90′s when Sosa and McGuired doped but filled seats and owners’ bank accounts.


But when Bonds/Clemens/Balco pulled the curtain back on the owners’ ‘wink-wink’ PED ethic,, and the public became disgusted, the players and owners put in place a new system of controls. That system gave both parties cover, and allowed the owners to “countenance” one arbitrator (Das) who took the teeth out of the system by consistently ruling in favor of players — like Braun – who challenged the legitimacy of testing results. The owners even pretended to be furious with Arbitrator Das’ decision, though they must’ve known it was coming, and was part of the understood ‘wink-wink” process.

But the subsequent, recent and appalling very detailed Biogenesis revelations about widespread doping once again pulled back the curtain on MLB’s “dog-and-pony show” PED-enforcement process. Which leaves the average fan’s attitude somewhere around, “MLB, you got caught  doin’ the same thing AGAIN!


Same claimed “mistake” twice? That’s called a habit. A character flaw.

But there are other important factors here: each of the above “recidivists” are in the public eye,  conducting public business – which makes them subject to a higher standard of care in performing their duties, and which ought to allow the public to have short patience with respect to even the first transgression.

More important is that each of the four deceived the public about even the existence of “repeat transgressions”: Weiner still won’t come clean about all the Carlos Danger facts. MLB portrayed it’s new millenium PED-enforcement system as rigorous.  Braun swore on Bill James’ bible that he never doped. Rutgers’ deception, though, stands out among the four, since the Skadden Arps “Case Study” (I thought those were done in community college ‘The Story of Business‘ classes?) intentionally omits the First Lesson learned by any careful review of Rutgers’ history: President Barchi gets an “F” on each of the standards established by the 2008 ARC report. By failing to make that explicit and completely obvious conclusion, Barchi and Skadden attempt to deceive the public. The Skadden “Case Study” is an affirmative, bold-faced written effort to buffalo the public.

I don’t know, maybe “twice is the “new’ once”, or something like that, but I don’t buy it.  What we’re being told now, in effect is:

By Weiner: “I’m trying hard to get my personal dark side under control.”

By Braun: “I’ll take a vacation ‘til the season ends, and will be back next year to start collecting the more than $100 million my contract calls for – wouldn’t you have doped in these circumstances? Plus, I don’t really give a good goddam what you think, our union’s the most powerful one in America, and our contracts are guaranteed.

By Rutgers President Barchi: I’m tryin’ really hard to use “adequate internal controls… sufficient interdepartmental communications, and to inform the board regularly and completely.”

By MLB: “We’re really mad now, and we’re really tryin’ harder.”

Throw ‘em all out. Barchi and Weiner: move on. MLB Owners and players: get a real PED enforcement system in place. Braun, just get lost.

Until they do, throw dead chickens and ducks in their doors, as they do in China.


Posted in Mike Rice, NCAA Enforcement, Ryan Braun | Tagged , , , , , , , | Leave a comment

Wainstein Touted Emmert’s Miami “Prudential Concerns” AND Authorized NSA Surveillance

English: Ken Wainstein

English: Ken Wainstein (Photo credit: Wikipedia)

Only in America.

Kenneth L. Wainstein, Esq., of the Cadwalader white-shoe law firm, is not only the author of the by-now notorious UMiami “prudential concerns” report of February 2013 (commissioned by NCAA President Mark Emmert; see my prior posts,I Repeat: NCAA “Enforcement Review” by Cadwalader Found NO Violations”,, and ‘The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy”, 2/21/13, 

That report preposterously found that NCAA staffers violated some airy, never-cited “prudential concerns” during their investigation of earlier allegations of serious NCAA Bylaw violations by UMiami.

Wainstein also, I was astonished to discover yesterday, served as  former General Counsel and as Chief of Staff to the FBI Director, and also as  a former assistant attorney general for national security between 2006 and 2008), and is also right smack dab in the middle of the current and piping-hot whole Snowden NSA surveillance/4th Amendment controversy.

(I had a vaguely similar sensation when I discovered in my adult life that Jimmie Davis, a 1940′s governor of Louisiana, was also author of that great American folk classic, ‘You Are My Sunshine.” A Governor wrote, I thought to myself, a folk song? — Cool!

There’s a great story Davis told, as we diverge to the important topics now, about Davis touring with his musical group in the 1920′s, performing in road houses and dance halls across the Louisiana and Mississippi deep south, being paid some pittance or another, so that his group of six musicians were able only to rent a one-bedroom cabin in motor courts which were common then, and all six had to sleep in the one big bed. He might’ve even told the story, which enjoyed variation and embellishment over the years, needless to say, to include the notion that the ‘Sunshine’ song was conceived in one of those six-person beds.)

And Wainstein is now on the defensive, because he was a major player in just rubber-stamping whatever NSA wanted. Much of this controversy, and the NSA’s breath-takingly broad interpretation of its’ powers, has it’s genesis in Wainstein’s legal opinions six or so years ago.  Wainstein’s role is described as follows in this July 4, 2013 Washington Post story ( Continue reading

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Astonishing Video – Ukrainian Daredevil Building-Hangs

Ignore the explicit language in the rap song attached; in fact, turn the sound off – the sheer piercing nature of the video (particularly the calm, bemused look on his face) makes the rap seem banal, placid, contrived.

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McGehee of Steubenville High: A Story to be Taught in Every High School

The recent rape convictions of two Steubenville High School football players have gotten much world-wide attention. We’ve gotten detailed insight, through cell-phone related electronic records of the video, text, and email kind – with a level of accuracy and contemporaneity which would have been unheard of a decade ago – into not just the dark side of high school football players, but of the adolescent American male.

It’s an unnerving, tawdry and at times disgusting display of brutish, narcissistic behavior, confirming that we are not fallen angels, but risen apes.

The record is compelling, eye-opening, but – more importantly – instructive. That record, and the story behind it, should be taught in every high school. High school males need to confront the ugly portrait  but also see the light of independent, decent-hearted judgment which penetrated the events through the texting of one male named McGehee, who happened to have been a best friend of one of the two convicted teenagers.

McGehee saw the ricochet of texts and videos but, unlike all other males apparently involved in, or aware of the events, became incensed. So incensed that, upon finding his cell phone battery exhausted, borrowed a friend’s, and texted his best friend, to tell him (in more direct, profane language): you’re nuts, this is revolting, you need to stop now  – “I’m going to strangle you.”

That’s it, right there. Extraordinary, pure, volitional ‘right conduct.” The kind that young men everywhere need to study – to learn to similarly think for themselves and to call out evil when they see it.

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I Repeat: NCAA “Enforcement Review” by Cadwalader Found NO Violations

Dennis Dodd, of CBS, for whom I have respect because he is usually both aggressive and skeptical, has nonetheless just jumped off a high cliff without first looking down. (See his article, ‘New Enforcement Cop Duncan Faces Battles Inside, Outside NCAA Walls’)


In his review today of the NCAA Enforcement staff mess — a meltdown, it appears, where staffers meeting for the first time late last week with new Enforcement Chief Duncan (who replaced the unjustly vilified Ms. Lach) were found variously sobbing, wailing, or complaining – Dennis remarks that,

“To the outside world, paying an outside attorney (Elena Perez) to obtain information otherwise not attainable in the Miami case seems obviously unethical.”

If this was so obvious, then Ken Wainstein of Cadwalader, commissioned by Emmert to conduct an “objective” outside review, missed the obvious. Wainstein found no violations of any written statute, bylaw, or rule. Period. Nor did he find any violation of any specific ethical rule or precept. So it’s still a mystery, rather than being anywhere even close to  obvious.  Attorney Wainstein was supposed to have given all of us an unvarnished look, from the “outside world” as to what exactly was right or wrong about the NCAA investigation of the ‘U.’

Wainstein found nothing. Zippo. Zero.  And in fact, Wainstein made up out of thin air the just plain silly notion that the NCAA investigator in the UMiami case violated “prudential concerns“, and the “expectations” of NCAA members. This is akin to announcing that somebody failed to open the door for the female as she entered, or that a staffer used his ‘salad’  fork on the ‘entree’ course. It’s nonsense, and the kind of frivolous, fabricated alleged violation which ought not concern serious people.

But a substantial majority of the sporting press has jumped off this same lemming-cliff with Dennis Dodd: they all actually think that something heinous was done by the NCAA staff.  According to what we know so far, nothing wrong was done;  Attorney Wainstein appears to have …. intuited some Grand Consensus-in-that-NCAA-Member-Sky about what all these many members all very surely believe as to what is “prudent.”

It’s poppycock, and people like Dennis Dodd need to grab an ammonia-drenched hanky, and get ahold of themselves.  Wainstein got hired by Emmert to give him cover; Wainstein showed a complete lack of moral authority or dedication to truth, and gave Emmert what he wanted.

Here’s the appropriate response to the Wainstein/Cadwalader evaluation:

As far as we now know, no wrongdoing was done by the NCAA investigative staff in hiring Attorney Perez.  (Other than, as I pointed out in my earlier post, ‘The Fatuous NCAA Enforcement Review Report: Julie Roe Lash Got Bagged to Save Emmert and Remy’, 2/21/13), Investigator Najjir having countermanded an internal order from a superior.)

And, as I will show in my next post, this voodoo claim of some Investigator wrong pales alongside a developing, but entirely ignored – and much more serious — set of violations involving the NCAA and its’ member schools. Stay tuned.

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PSU’s Compliance With Mitchell ‘Integrity Report’: Two ‘Authorized’ Adults Present When Young Recruits Visit?

I think Penn State may have been violating Senator Mitchell’s First Quarterly “Integrity Monitor” report, dated November 30, 2012, and the new Penn State policy AD 39 (adopted in June 2012), which Mitchell endorsed in that Report.

Mitchell’s Report states, at page 31, that on June 7, 2012, the University revised its’ Policy AD 39 pertaining to “Minors Involved in University-Sponsored Programs or Programs Held at the University and/or Housed in University Facilities.

It goes without saying that PSU recruits high school players who are “minors.” Pennsylvania defines a minor as anyone under the age of 18. Some other states (where Penn State actively recruits), define the age of majority as up to 21. Any of those minors recruited by Penn State are subject to – and should be protected by -, this new AD 39 Policy which was given Senator Mitchell’s stamp of approval last November.

And AD 39 requires that

“at least two Authorized Adults … be present during all interactions and activities activities with minors.”

This raises the question as to whether, since June 2012 when this new policy was adopted, PSU has had two adults present at all all times with minor recruits, but also (assuming two adults have been present as required), whether those two adults have been “Authorized” as strictly defined by the new Policy AD 39. 

The common practice at big-time campuses like Penn State’s is for the coaching staff to “assign” the responsibility for “hosting” a recruit to one or two existing players, who act as “chaperones” for that recruit.

Under the terms of new PSU Policy AD 39, any such current Penn State player who “hosts” or “chaperones” such a recruit who is a minor must qualify as an “Authorized Adult” as defined by that new policy.

(Adults who must be properly “Authorized” are defined as “Individuals, age 18 or over, paid or unpaid, who interact with, supervise, chaperone, or otherwise oversee minors in program activities, or recreational, and/or residential facilities. This includes but is not limited to faculty, staff, volunteers, graduate and undergraduate students, interns, employees of temporary employment agencies, and independent contractors/consultants. The Authorized Adults’ roles may include positions as counselors, chaperones, coaches, instructors, etc.”)

And the required “Authorization” for such adults is described in the Mitchell First Quarterly Report as follows:

“Under Policy AD39, ‘Authorized Adults’ participating in a program involving minors must attend annual, mandatory training on protecting minors from abusive treatment and on mandated reporting requirements for suspicions of child abuse. The activities of Authorized Adults are carefully restricted.”

The Mitchell First Quarterly Report also states that, amongst the changes (in required training for adults in supervision of minors) are included “background check guidelines for authorized adults; mandated reporter training obligations; self-disclosure of arrests or convictions; requirements for two or more authorized adults to be present at all times during programs, and guidelines related to communication with and transportation of monitors.”

The language here is somewhat ambiguous, but suggests that “volunteers” such as those current athletes who are assigned to chaperone recruits on “official” visits, are covered by the policy and required to have both the background check and the appropriate training, to achieve “Authorized Adult” status.

So that, if “chaperones” for PSU recruits who are still minors have not had that mandatory annual training, then Penn State has been in violation of this new policy.

The new policy also states that an Authorized Adult “may not enter a minor’s room, bathroom, or similar area without another Authorized Adult present,” and that “Authorized Adults must stay in separate accommodations.

It is not clear that Penn State has changed its’ recruiting practices to comply with these rather rigorous — and unique in the industry — standards for on-campus chaperones for minor recruits.

It’s also worth noting that an area of ambiguity is whether this “Two Adults at All Times” policy applies when Coaches are out on the road recruiting, in recruit’s homes and home towns, or at 7-on-7, AAU, and other tournaments and gatherings where top recruits are visited. My reading of the Policy is that AD 39 does, in fact, apply “out on the road”, but I have no information as to whether PSU athletics has taken steps to comply.

By undertaking this entire analysis, I am not suggesting that I support new PSU policy AD 39. I don’t.

And I am no fan of big-time college recruiting. It’s pimping. Grown men, sweet-talking minors. Gullible, often under-educated minors. Grown men, with vested, strong, compelling self-and-institutional interests – which might be in conflict with the interests of young men who are minors — making promises, vague or explicit, which are neither enforceable or, oftentimes, kept.  It’s all just plain Creepy. That creepiness is only one reason why I favor the free-market employment recruiting process, which revolves around attracting candidates by offering higher pay.

High school players should be recruited the same way any other potential employee is recruited: with competing offers of money, which can be stacked up against each other. Is it important for a player to know the personality and other intangibles associated with the people he might work with for the next four or five years? Absolutely. Let him figure that out. But let’s have the basics of this system work around the amount of money the prospective employer/college athletics operation chooses to pay the kid.

Finally, I don’t agree with the tenor or the letter of new PSU AD 39; it’s an overreaction, and I would contend that the requirement of a constant presence of two adults, when supervising minors, is appropriate and necessary only where there inheres some risk that an adult with illicit motive might take advantage: in closed-door rooms, smaller spaces, locker-rooms, bathrooms, etc. It makes no sense to require that two adults be present, for example, in a large gymnasium where eighty other kids are running around.

George Mitchell, armed with good sense and some wisdom, should have objected to the unnecessarily constraining nature of this new PD 39. (As I pointed out in an earlier Dec. 6, 2012 post, ‘How Sen.Mitchell’s Integrity Report Overlooks PSU’s Effort to ‘Gut’ a Basic Reform’, Mitchell similarly whiffed by rubber-stamping the PSU Athletics Department’s overtly under-handed implementation of the new post-Sandusky requirement that each sport have a new ‘Team Monitor’, responsible for overseeing “integrity” and compliance issues. PSU quietly let slip that the new Team Monitor for football and basketball would be the Head Coach! – creating the bizarre end-result that, if Joe Paterno were the PSU Head Football Coach today, he would also simultaneously function as his team’s own “independent” Team Monitor(!) So much for independent oversight and accountability.

Mitchell blew it, and he needs to go back and revisit these two topics.

But until Mitchell squawks, PSU is stuck with these overly restrictive rules which require coaches and recruit ‘chaperones’ to al  AD 39, and must comply.

I’d be interested in input on these issues.

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