Maryland and MSU show that NCAA Commitment to “Welfare of the Student-Athlete” is Hogwash

We have just been informed that the NCAA has “cleared” MSU, as regards the athletic swamp which was generated by Dr. Nasser. Allowing for us all a brief moment of silence, this is still a little much. Cleared?

The NCAA appears to be on a similar track, to “clear” Maryland, as regards the inexcusable Maryland coaching events which appear to have been the sole proximate cause of the death of Jordan McNair earlier this summer (in circumstances which indicate that Maryland — or, I should say, Jordan McNair — would have been much better off, if some 7-year old with a basic heat exhaustion-care app, had been on premises.)

Put away the smelling salts. Get a hold of yourself. You just don’t understand the craven structure and operation of the NCAA.

The NCAA can’t “clear” MSU, or Maryland. That press release is nonsense. Why?

It’s because of the Great NCAA Flip, which has taken place over the last century. In 1905-06, Teddy Roosevelt strong-armed the Big 3 — Harvard, Princeton, and Yale — to put an end to all the foolish carnage (deaths, and serious injuries) which had taken over college football. So they formed an outfit, which morphed by 1910 into the NCAA. Its principal mission, in response to Teddy’s kick in the bottom, was safety and, as a result, they passed game-rule changes, which outlawed the flying wedge, allowed the forward pass, and established the 10-yard first down measure. Over the ensuing decades, though, the NCAA slavishly avoided oversight of ‘cheating’ in amateurism, associated with claims that players were being paid, primarily because it was so worried about attracting more members (most of the football schools initially shunned the NCAA.)

Thus was born the notion of ‘Home Rule,’ a doctrine adopted by the NCAA to assure potentially-interested schools that only safety — not ‘cheating’ about academic matters, or payer play –would be controlled by the NCAA. In short sum: by 1920, NCAA ‘Home Rule’ left academic issues (and issues about paying players) to the local school or conference.

Fast Forward, a Century Later: The NCAA has done its Big Flip. Now, the NCAA purports to need to oversee only ‘player-payment’ issues, and — believe it or not — leaves all safety issues to the local school or conference!

Safety? — that’s Home Rule! Player-pay — that’s the NCAA’s job!

What — a — Flip.

But this Great NCAA Flip exposes the reality of the NCAA’s deceptions. The ‘Welfare of the Student-Athlete’ is not even on the top 50 list of NCAA concerns. Why? Because the NCAA dropped Safety from its ‘Home Rule’ jurisdiction. The NCAA membership does not, it declares by removing safety from its Home Rule category, care a whit about player safety. If you call the NCAA about some player safety issue, the operator will give you the phone number for the particular school or conference involved. (Conferences, too consumed with negotiating fabulous TV contracts, are just media-brokers, and completely AWOL on safety.)

If player safety at PSU, OSU, Maryland, Iowa, or other outfits is of any concern to the NCAA, then it would make player safety a ‘Home Rule’ topic. Until then, the NCAA cannot “clear” MSU, or Maryland, or PSU: as structured, player safety is not within the organization’s jurisdiction.

In short summary: because the NCAA will not act to include safety within its Home Rule jurisdiction, it cannot clear anybody or any school. The NCAA has excluded safety from its Home Rule jurisdiction because it wants to avoid liability for injuries and deaths like those suffered by Jordan McNair. The result? The NCAA values the avoidance of legal liability more than they do the welfare and safety of the student-athlete.

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OSU Still Buries the Facts and Covers the Tracks, and Mary Jo White Will be Exposed as a Hired Gun

If you are a student in Communications or PR at a Big Ten school, you might want consider transfer, because its member schools have recently tended to write colorful Harvard Business school case studies to illustrate exactly how horribly PR crises can be handled. And, now that we’re some 8 years post-Jim Tressel scandal, I’m embarrassed, but also dismayed, to here state that, among those schools which have had serious PR crises — PSU, OSU, MSU, Rutgers, and Maryland –Penn State has done it best. Yes, Penn State. Not that they’ve done it well; just the best of a bad lot. And, now that I think of it, that list of five schools should be expanded to six, because we need to add Ohio State in twice (Tressel scandal in 2010 – ’11; then again with Meyer in ’18)

Each of these schools have violated the PR’s Cardinal Rule #1, which is ‘do not, under any circumstances, let a story get ‘legs.’ If the story becomes a story which repeatedly, over days or months, pops up on our screens, then you have failed.

It’s actually too early to decide who has recently won this race to the bottom: both Maryland and OSU are sprinting to get more deeply buried in the muck. Maryland has still not gotten a report from the second investigative team it has hired (after they hired a completely put-up-job guy from some safety backwater.) But OSU is still a contender in this upside-down race, having gotten a slick, high-brow report from former SEC figurehead, enforcement-lackey Mary Jo White, who had, apparently, one too many meetings with the OSU Board’s subcommittee, and bought into their need to bury facts and cover tracks.

Short sum: White struck out, because she can’t count to nine. She decided that, even though Urban Meyer repeated the same lie (that he hadn’t known of Z. Smith’s ’15 transgressions) nine times, those Meyer lies could, according to White, only have been inadvertent. White once again proves: the higher your education and prestige, the goofier the conclusions you can deliver to a credulous public.

White also struck out because she was unable to conclude that both AD Smith and Meyer had violated explicit provisions in their contracts of employment, which had mandated that they report all instances of domestic violence concerning their employees — whether or not those instances involved arrest or report to the police. Neither performed according to contract. But Mary Jo, like some breathless candidate for OSU Homecoming Queen, certainly could not have been bothered to emphasize such simple notions of employee contract duty, which might have affected her candidacy for the crown she so avidly coveted.

And then she came up with the great cover: Urban Meyer did not intend to lie to us all, nine times. From whence did she divine this highly subjective notion?  It is not at all clear, because there are no empirical facts to support that conclusion. But if you are a former SEC head, who presided over that body’s ready willingness to endorse any sort of corporate excuse, it is quite easy to entertain this sort of resolution of what are red-line contractual violations by Urban Meyer.

White’s failure here has two ramifications: 1) on a matter of such major import, any other employee would have been immediately fired; 2) this is AD Gene Smith’s second time traveling down this ‘failure to report’ terrain.  He’d masterminded the last one, and screwed it up to a fare-thee-well. Jim Tressel’s long deceit was Gene Smith’s; when Smith got the mid-December 2010 letter from the U.S. attorney, he failed to review Tressel’s emails. It was only a month later, when some members of the athletic department staff independently happened to be engaged in reviewing other documents, that they discovered that Tressel had scammed and boldly lied-to millions of people for months.

But here’s the central point: Smith never inadvertently screwed up, either in ’10 or ’18. Meyer didn’t unintentionally lie. They both acted with precision, to bury facts and cover tracks. Meyer knew he was lying to the press. (Text the night before: “I won’t tell the media.) Smith and Meyer applied what has been the The De Facto Rule of the Gene Smith Administration: what has a low likelihood of later being found out can, and must, be buried. Bury the facts, and cover the tracks.

But more will be found out. Gene Smith’s emails were never searched by Mary Jo White, even though his state of knowledge was a central issue, just as it had been with the Tressel scandal. And Mary Jo White threw up her hands and, apparently, decided — contrary to all current wisdom — that she could not, or would not, track down the emails deleted by Urban Meyer, or search the long Gene White email-trail.  White did not want to know: she wanted to bury the facts, and cover the tracks.

But more is coming. I know of FOIA requests to get Gene Smith’s long email trail.  It will come out. And Meyer’s sudden delete of all emails, on July 31, 2018, made disappear all emails which were older than a year, but anyone who has dealt with serious matters knows that such deletions are mere road-bump, on the forensic road to discover pertinent facts. Meyer’s text will surface. And Mary Jo just might not be an OSU Homecoming Queen, after they do. Until then, Gene Smith: bury the facts, and cover the tracks.

 

 

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Mary Jo White-Wash: OSU Report Dots the ‘i’ in ‘Script Ohio’ for Meyer and AD Smith

There she is, Mary Jo White, silver tuba glinting in the sun, marching in step behind the baton-waving drum major, around and about the moving, living ‘Script Ohio‘ text message which is spelling out, O, then H, then I, then O, unfolding on the grand green pre-game OSU Horseshoe stadium, until White is at that spot, and the crowd is fully-frenzied, the band blares, and White overtly sweeps one leg out and around a quarter-turn at a time, to bow grandly, north, east, south, and then west, the crowd exploding — and then bows swiftly down to deliver her 23-page whitewash report to the sacred turf, to serve as the dot on the ‘i’ of the ‘Script Ohio.’

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White has opened the season for the Buckeyes, by writing a white wash report which ought be set out next to the one-holer out back, alongside last year’s Sears Roebuck catalog, where it might serve an honest function.

________________

Didn’t We See This Movie Before? In 2002, OSU AD Andy Geiger”s written statement annual evaluation of head coach Jim Tressel’s said that Tressel was not faithfully reporting NCAA violations he knew about.

And Gene Smith, who became AD in 2007, has already had his department wracked by crushing scandal relating to serious breaches of duty of report violations. In April 2010, Tressel got emails from a booster-attorney in Columbus, informing him of NCAA violations, involving sale or trade of OSU memorabilia by players, including Terrelle Pryor. Tressel’s first action was not to report the issues to OSU or the NCAA, but to email Pryor’s ‘patron’ back home in Pittsburgh, a local man who served as a mentor/father figure to Pryor. In September, Tressel filled out a mandated form, averring that he was unaware of any NCAA violations. When the U.S. attorney sent a letter to OSU in mid-December, concerning the same memorabilia sales by players, Tressel again denied any knowledge of any such events. OSU filed a self-report with the NCAA, which recounted Tressel’s lie that he had known nothing of the events. Much hoopla surrounded the pending question as to whether the 5 players would play in the upcoming bowl game, and Tressel publicly, on national TV, chastised the players for their involvement (the players were allowed to play in the bowl game.)

Two weeks after the bowl game, someone at OSU happened to review Tressel’s emails, and found that he had, for the previous 9 months, been lying about having had no knowledge of the violations. But, instead of immediately reporting Tressel’s obvious, long-running fraud, OSU sat on the information for three weeks. All these Tat-gate events took place while Gene Smith was athletic director.

What should Smith have learned from the Tressel scandal?: 1) an electronic trail is important; 2) concealing a job-related electronic trail is strong evidence of both culpability and insubordination; 3) That good administration of an athletic department requires a) mandatory retention of all electronic communications; b) mandatory ‘one-click’ forwarding reporting of all possible violations, not just obvious ones. (All Tressel had to do, for example, back in April 2010, was forward the attorney-booster’s email to Smith, or OSU compliance — with one click.)

The Guts of White’s whitewash is this part of her report:

“The failure of OSU personnel to respond promptly to two July 25, 2018 records requests from the school pa,per, “The Lantern,” for emails and text messages, as well as
any call history, between Urban Meyer and Zach Smith from July 18, 2018 through July 24, 2018 and between Oct. 25, 2015 and Dec. 1, 2015, and the same communications between AD Gene Smith and Coach Meyer for the same dates for any materials “pertaining to Zach Smith.” On July 25, 2018, these requests were forwarded to Julie Vannatta, Senior Associate General Counsel, who, on July 25th , emailed AD Smith, and
Diana Sabau, Senior Associate Athletics Director, and instructed them to retrieve responsive emails and texts from Coach Meyer’s phone. On July 26th , Vannatta asked Amy Nicol, Director, Internal Operations for Football, and Brian Voltolini to “go get [Coach Meyer’s] phone and check his texts with Zach.” Although all of these individuals were aware of the requests – and indeed both AD Smith and Sabau responded that they had no documents on their end – no one appears to have actually checked Coach Meyer’s phone or even approached him about the requests. Had Coach Meyer’s phone been examined and processed promptly at that time, we would know definitively that the August 1 article’s revelations had no impact on the evidence we received for July 23rd and dates in 2015. While the absence of prompt and effective follow-up is problematic and frustrating, we want to be clear that we have found no evidence suggesting that Coach Meyer was aware of the records request before we brought it to his attention during the Independent Investigation.”

Nobody lifted a finger when directed to go get Urban Meyer’s text messages. The delay of about a week, until after it was discovered that all texts on Meyer’s phone, older than a year, had been deleted (and that others may have been selectively deleted), left plenty of time for Meyer to do a cover-up, by consulting with Voltolini about how to do the deletions. This parallels the three week delay, after Smith discovered Tressel’s emails on Jan. 13, 2011, before Smith reported Tressel’s fraud to the NCAA: both delays gave to Tressel, and now, Meyer, plenty of time to scurry to bury the facts and cover the tracks.

Other Meyer events echo the Tressel scandal. Tressel lied to a riveted national audience, during the Christmas season preceding the 2011 OSU bowl game. Meyer similarly lied to the circus-ring of press and public which surrounds the Big Ten summer pow-wow. The difference?: NCAA staffer Tim Nevius artfully cross-examined Tressel in a deposition, and proved that Tressel had “purposely lied” — which was the conclusion explicitly made in the COI report.

Like Tressel’s rinky dink lies to Tim Nevius (“I didn’t report the emails I got because the tattoo-shop fellow was a known criminal, he even associated with murderers, I just couldn’t, I just froze), Mary Jo White was confronted with Meyer’s a) Tressel-like excuse that he didn’t ‘intend’ to lie (despite the fact that he repeated the lie eight times, and had had numerous specific discussions on the topic the previous night); b) greasy-kid-stuff assertion that he’s always had serious memory issues due to medication; c) wild assertion that he nonetheless had perfect memory about a phantom meeting with Courtney Smith eight years previous. Nevius and the NCAA saw through this variety of nonsense which tends to issue, apparently, from the mouths of OSU head football coaches. But White, in her desperation to white-wash, was locked in: the whole nation already knew, from the transcript of the Big Ten presser, that Meyer had lied.

So what did she do? — a quick look at a pertinent other finding by White helps show her zany solution:

“Meyer told us that his primary reason for firing Zach Smith was because he failed to bring both the order of protection and the criminal trespass matters to his attention, and instead Meyer heard about them from news and social media reports; Coach Meyer considered these failures to be violations of the core value of honesty.”

Here White and Meyer hoist themselves, and Gene Smith, by their own petard. Mary Jo White should have made a nearly-identical finding about Urban Meyer — as follows:

He failed to bring highly relevant information about Zach Smith’s lengthy, appalling history, to Gene Smith’s attention, and instead G. Smith heard about them from news and social media reports. Gene Smith considered these failures to be violations of the core value of honesty.”

That sort of finding should have been followed with another by White: “Gene Smith should have fired Urban Meyer for many of the same reasons Meyer fired Zack Smith.”

Instead, White dared go where reason, evidence, objectivity and good faith dared not go, and tried to wallpaper it over, by making the ouija board conclusion that Meyer hadn’t intended to lie.

What did Gene Smith actually learn from the Tressel scandal? These events all show: a) a lack of institutional control in Gene Smith’s athletic department; which b) Smith intentionally creates and preserves. Smith saw — and substantially caused — the Tressel failure-to-report scandal — and nonetheless failed to have in place in 2018 procedures which would require preservation of all electronic evidence, and prompt reporting of all possible violations.

It’s not that Gene Smith sloppily failed to learn the obvious lessons from the Tressel scandal. To the contrary: he rejected them, in favor of the a directly contrary course of action. The repetition of the same kind of failure-to-report events only seven years after the Tressel scandal caused Tressel to resign, shows that Gene Smith’s department lacks institutional control because he wants it that way: he has intentionally set up an environment which encourages people to bury facts, and cover the tracks.

Forensic Restoration of Deleted Text Messages: But here’s the final reason why Mary Jo White will be invited to the OSU football team’s annual awards banquet next January, where she will receive the same ‘gold pants’ trinket memorabilia which all the players get (if they beat Michigan), and a letter-sweater: deleted text messages are commonly recoverable. It might cost money, but OSU is paying White $1,500 an hour, so cost is not a relevant factor. Text messages can be recovered. But Mary Jo White didn’t want them. Mary Jo White should’ve gone after the texts, and also recommended: 1) termination of both Meyer and Gene Smith; 2) immediate new OSU policies mandating that a) all athletic department electronic communications always be preserved, and b) that immediate reporting of all possible violations always take place, with one click.

Instead, OSU remains, even now, an operation which encourages burying the facts, covering the tracks, and lies. And Mary Jo White?: she dotted the ‘i’ in ‘script Ohio,‘ and the ‘i’ in ‘lies.

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Jordan McNair’s Death: Human Errors, Checklists, and Need for Radical Change

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Jordan McNair’s death at Maryland football tells us that something is very rotten in college football safety; top-to-bottom change is needed. Some random thoughts:

1. Is there an App for that? Jordan McNair’s life would have easily been saved, had there been a 7 year old kid there, able to tap a cellphone app, to pop up the quick-and-dirty checklist for handling heat exhaustion. Atul Gawande revolutionized medicine, and slashed medical error rates, by insisting upon use of basic, simple checklists to be applied, not just in surgery, but in clinical and other situations. Gawande’s great accomplishment was finding simple ways to eliminate predictable, recurring human errors. Medical and injury practices in college football need similar checklists.

2. Change the Hierarchy for diagnosis and treatment of football injuries: Gawande not only insisted upon checklists; he has been responsible for the other revolution in the provision of medical care: change the hierarchy. Surgeons, for example, used to run every surgery with an iron fist, so that everyone was afraid to speak up to make suggestions or corrections. Gawande changed all that: now the surgery has a protocol, with numerous checklists, with one person assigned to check-off each list. And if the surgeon doesn’t want to go along? — he is sanctioned, and not allowed to perform surgeries. (A similar hierarchy ‘shift’ has taken place in airplane cockpits, so that the Captain no longer has unbridled authority to rule: job descriptions have been changed to breed a more collaborative approach, in which the captain is required to review basic checklists.) Any medical or injury treatment in football conditioning, practices, or games, needs a similar revolution. For example, when Maryland trainers or others yelled to drag McNair off, or when a coach repeatedly berates a player for not being tough enough (as happened repeatedly before Ted Agu, a big lineman, collapsed and died in the heat at Cal), there should be a person there who can tell the coach to shut up and back off, so that the checklist can be followed. An oversimplified lesson to be drawn from the McNair death is that Strength and Conditioning coaches need adult supervision — though the accuracy of that conclusion is tested by the fact that adult head coach D.J. Durkin was on premises when McNair collapsed — driving the conclusion that even head coaches like Durkin need adult supervision.

3. Stop requiring large lineman like McNair to do ten 110-yards sprints: McNair’s death, alone, should cause a complete revamp of the way behemoth lineman practice. (There are plenty of other examples, too: Agu at Cal, Korey Stringer, O’Neal at Mizzou.) The science and practice of conditioning those large athletes should be specially designed to recognize that they are never required to run 110 yards in a game, and that their play-by-play exertion tends toward power-based footwork along the line and, short 10 or 15 sprints. I’m no exercise physiologist, but these coaches who make every lineman do those 110 x 10 sprints are knuckleheads. Get rid of ’em.

4. Stop Pretending S&C coaches are ‘Not–Coaches’: S&C coaches should not be exempt from the NCAA CARA and other time/contact restriction imposed on all other coaches. Tell them to go home and learn to knit during the off-season. Let the players who want to lift on their own do it.

5. Resurrect the off-season: NBA, NFL, and MLB players all have a number of months during which the owners have no control over, or contact with them. College sports should create a mandatory 90-day off-season, during which contact with the player is proscribed. Over the last 40 years, coaches have evolved from seasonal coaches, into mad-men who insist that the drug which is their sport must be injected every day of the year. (Unfortunately, even many of the ‘Non-Revenue’ sports no longer have any off-season — solely because athletic directors have arbitrarily decided to measure their own performance, and that of other AD’s, by Learfield/Director’ Cup ranking.)

6. Create a Medical Ombudsman position, for football: Each school should appoint a player’s Medical Ombudsman, paid for by the school, but independent of the school, with a duty of confidentiality which runs only to the player. This person would serve to receive reports, and consult with, each player who seeks that kind of advice or consultation. (Erik Burkhardt, one of the most competent and respected agents for NFL players, says he spends fully one-half of his time handling the many medical issues which his clients confront in a dangerous sport.)

7. Create a Legal Ombudsman, for football and basketball: This similar position, paid for by, but independent of, the school would give player a confidential source for legal consultations of all kinds. Though schools and they NCAA like to pretend otherwise, the average big time basketball and football player confronts many legal issues throughout the year.

8. Require that medical staff for athletes be hired and employed by (with reporting duty to), non-athetic department personnel. Maryland President Loh, when faced with this logical recommendation a year ago, rejected it.

9. Require that conferences play a significant role (and spend significantly) in Player Safety: Conferences have devolved into media-rights brokers; they also have massive income. Some substantial portion of those budgets should be devoted to player safety. Imagine if the Big Ten had hired some geek sophomore at, say, Iowa, to design and implement an app which provided Gawande-type simple pop-up screens, with basic 5-point instructions for handling the top ten emergencies in football? It might’ve cost the Big Ten $2,000. And McNair would be alive today. (The same logic applies to the NCAA.)

10. Require the NCAA to establish medical-treatment and injury-prevention standards. The reason the NCAA now refuses to set standards is that it wants to avoid liability. That cost-avoidance jumpiness may be proper for-profit ventures — but not for a non-profit like the NCAA, which also broadly pronounces that its #1 concern is the “welfare of the student-athlete.”

11. Make UnderArmour take a role in player safety: Jordan McNair was on UnderArmour’s advertising staff. Every big-time NCAA football and basketball player works as a (very valuable) advertiser for Nike, Adidas, or UnderArmour. McNair, I am quite sure, collapsed while advertising for UnderArmour, since he wearing their gear. UnderArmour should step up and commit to providing — and developing, with Maryland, — the most sophisticated wearable tech apparel which might help monitor and prevent heat-exhaustion.

12. Post “Safety First” signs everywhere on the football workout complex: In some ways, college football is no different than a construction site: both have not only an ever-present risk of many different kinds of injuries, but also the risk of life-threatening injury. And, just as at construction sites, signs should be placed everywhere dictating “Safety First.” The entire paradigm needs change. There must be some schools which do it all better than Maryland, but the Maryland fiasco is a canary indicating that big-time college football safety programs are stuck in 1960.

13. Penn State/Mitchell Report “Athletics Integrity Program” was to be applied to the entire Big Ten – and all safety issues, not just pedophilia: All Big Ten members signed onto that Athletics Integrity Program (even AD Mark Hollis at MSU). And, contrary to popular belief, those practices mandated by that program applied to all safety issues, not just pedophilia. Those included Team Monitors, an Athletics Integrity Council and Officer, and creation of a system for reporting by a player to a source outside of the athletics department.

The whole paradigm for preventing injuries and deaths for college football players needs radical change. They were needed, in fact, after Ted Agu died at Cal. Why did McNair die? Because athletic directors, presidents, conference executive directors, and the NCAA did not care to act to make changes.

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McNair Death: Maryland’s Non-Doctor Doing Non-Autopsy ‘Review.’ NCAA? — Safety-R-Not-Us

After collapsing at a May 29 Maryland football “organized workout,” lineman Jordan McNair was quickly hospitalized. According to a GoFundMe site set up by friends after his hospitalization, McNair had a liver transplant there, and died on June 13. The Maryland athletics department has released few details about the circumstances leading to his hospitalization and death, other than that McNair had shown some difficulty in “recovering” while performing ten 110-yd sprints. No cause of death has been announced or even alluded to.

The school announced on June 19 that it had hired athletic trainer Rod Walters, who had previously been a head trainer at Appalachian State and South Carolina, to “evaluate relevant policies and protocols.” There is no indication anywhere that an autopsy has been, or will be, conducted.

The McNair family should know that they have some leverage in this situation, but also that there may be a need to act quickly. Some pertinent factors:

1. The Family Educational Rights and Privacy Act give the player (and parents) rights to access to most records which pertain to the student.

2. As was made clear by the Agu case at Cal-Berkeley, the Plancher case at UCF, and others, the interests of the university and those of the deceased player’s family often quite quickly conflict.

To keep track of events, and to insure that the family’s interests are protected, the family should probably:

a) immediately request a copy of any letter or email from or between Maryland Athletics and the consultant retained, Rod Walter. Ascertaining the scope of Walters’ assignment, as defined by Maryland, is important in determining whether the family’s interests are being protected.

b) request in writing, pursuant to FERPA, immediate access to all records, including any having to do with McNair’s death, and the circumstances surrounding it, on an ongoing basis. Specifically request the campus police report, and any other documents prepared by other staffers. Also specifically request production of all emails, pertaining to McNair, generated by any university employee since May 29.

c) demand that the school pay for an autopsy — by an expert selected, retained by, and reporting to, the McNair family. This is one of those expenses which can easily be paid out of the SAAF (Student Athlete Assistance Fund). If anyone at Maryland objects to funding for the autopsy for an athlete whose death appears causally related to his on-field collapse, the school should be immediately reported to the NCAA (and the press.)

d) ideally, retain a private investigator to interview teammates, to pin down what went on the day of McNair’s collapse. It’s amazing how stories can change over time, and getting fresh accounts is paramount.

e) specifically request a copy of all of McNair’s performance-and-body-monitoring data, generated by Physimax or by any other means. There is a strong possibility McNair was wearing body monitors, showing pulse and other metrics, at the time he collapsed.

Some large issues are generated by this series of events:

A. Year-round workouts are bad for any athlete. Months of rest are a good thing.

B. So-called ‘voluntary’ workouts — such as the one during which McNair collapsed — are not voluntary.  If you don’t show, coaches know, and won’t give you playing time. The NCAA should demand that no events of any kind be held or supervised or even viewed by any staffer for two months per year. (Note: Maryland has now, suddenly, informed all players that, from here on out, all workouts are ‘voluntary.’

C. Behemoth lineman should not, under any circumstances, be doing ten 110-yard sprints. Their job in the game is to sprint short distances around the line of scrimmage.  Here’s a little history from the Baltimore Sun on June 14:

Towson offensive lineman Gavin Class (St. Paul’s) collapsed during a summer practice in 2013 after suffering from heatstroke and underwent a successful liver transplant. In 2014, Morgan State freshmen defensive lineman Marquese Meadow died of heatstroke after a preseason practice, according to an autopsy.

The standards — and NCAA controls upon — training and workouts for players of exceptional size are antique. And an alarmingly high percentage of football practice collapses, and deaths, occur in linemen. One-size-fits-all is not prudent training.

D. Where is the NCAA, in terms of setting updated standards, and choosing to investigate? AWOL. In other industrial settings, OSHA usually immediately sends an independent investigator on-site, any time an employee dies. The NCAA has no one. They love to spend their money and staff time with on-site investigation of allegations of dollar payments to black athletes at southern schools (witness, recently, Ole Miss and Mississippi State). But a death of a D-1 player? — the NCAA doesn’t have the time to lift a finger.

 

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Dept of Education to NCAA Player: the ‘Student-Athlete Statement’ FERPA Waiver is Illegal

The ‘Student-Athlete-Statement’ which the NCAA and school require that the player sign is no statement. It is a bewildering mash-up of cleverly-disguised efforts to induce the player to sign away every possible economic opportunity which might come his way. And it is where all the action is: when faced with antitrust challenge, or when presenting the SAS to the player, the NCAA portrays it as a mere ‘eligibility’ statement. But when the NCAA and school seek to sanction the player for violation of one or more of the thousands of rules in its manual, they claim he has agreed to be bound by them because of his SAS affirmation that he has “read and understands” them. This preposterously global pledge — which should cause any person even vaguely familiar with the impenetrable wilderness of that manual to respond with this Churchill retort: “I should think it was hardly possible to state the opposite of the truth with more precision” – serves as the primary basis for any NCAA claim that the player is bound by contract.

The appalling list of the deceptions and contracting atrocities included in the SAS is much too long for this brief update, but last November, the U.S. Department of Education (USED) issued what has since been referred to as its Agora letter, which provides, as its letters have typically done, guidance for schools and students about how USED will interpret the 1974 Family Educational Records Protection Act [FERPA] mandate concerning parental and student consent for ‘term of services’ mandated by third-party providers to educational institutions.

Agora Cyber Charter School was one of the many third-party providers of digital/online services which many schools require for testing, evaluation, and tracking of students. And it has become commonplace for schools which contract with those third-party providers to have parents or students (once they achieve the age of majority, which is usually, in most states, eighteen) sign a waiver of FERPA protections, in order to allow such third-party providers access to all of the student’s educational records deemed ‘private’ by FERPA.

Except that now the Agora letter says that such waivers cannot be mandated by such third-party providers.

And the NCAA is a third-party. Is it a ‘provider,’ pursuant to this significant new Agora rule? This question, as it turns out, is not particularly relevant. What is relevant is this long-standing FERPA principle, reiterated in the Agora letter: 

A parent or eligible student cannot be required to waive the rights and protections accorded under FERPA as a condition of acceptance into an educational institution or receipt of educational training or services.”

This, then, is the line in the sand for the recruit, and the player at every school who is required to annually sign a new version of the SAS: do not sign the FERPA waiver. You not only have no obligation to sign the waiver: the school and NCAA violate FERPA’s terms if they require you to sign it.

JUST SAY NO.

Sure, the player’s refusal to sign the FERPA waiver would eliminate all NCAA involvement in academic matters, and would also possibly jeopardize: 1) much of any athletic department authority for its academic racketeering, which involves mammoth spending, on buildings, tutors, and slavish academic monitoring; and 2) the school and NCAA ‘particular brand’ of ‘pro-competitive’ football and basketball entertainment. And these developments might help to heal the pathological current state of things in big-time college sports.

As things now stand, the school procures from the player a mandated FERPA waiver of whopping value — at no cost. If the school really needs that waiver, then it should first sign its own waiver of any ‘no-pay’ provision, to allow the school to then pay the player for his FERPA waiver, at fair-market-value.

Player: do not sign the FERPA waiver in the Student-Athlete Statement which is handed to you when you arrive on campus.

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The Rice Commission, Amateurism Fog, and the Real Reason the UNC Paper-Course Decision Was Revolutionary

Poor Condoleezza Rice, up there at that lectern, staggering around, disoriented in the fog of NCAA amateurism, like so many others before her. Just as the 9th Circuit’s Judge Bybee, when he wrote the 2015 O’Bannon decision, had stumbled around in that same dudgeon fog, and plunged us all deeper-in, by concluding that “not paying student-athletes is precisely what makes them amateurs.” Bybee was wrong. And the new fog he created helped blind the Rice Commission to what was in front of them.

And the Rice people were probably further blinded by all the uproar since the October 2017 decision by the NCAA COI that UNC’s long-running ‘paper courses’ violated no NCAA rules. The decision was revolutionary, but not, primarily, for the reasons which caused uproar. Sure, the decision can be read to stand for the principle which so many have loudly decried, that the NCAA will not intercede in member-school academic matters. (I endorse this premise — the NCAA has no business getting involved in matters academic, which should be left to ‘Home Rule’ — but I’m not here to wrangle about the worthiness of that principle right now.) That controversy surrounding the COI’s deference to academic ‘home-rule’ created more fog, and helped hide the more important reason that the decision was revolutionary: the COI read and applied the NCAA’s own bylaw 16:

According to bylaw 16.02.3, the NCAA’s line of demarcation [LOD], between amateur and professional, is crossed when the player receives:

‘extra benefits,‘ defined as “any special arrangement by an institutional employee or a representative of the institution’s athletics interests to provide a student-athlete or the student-athlete’s relative or friend a benefit not expressly authorized by NCAA legislation.

This provision shows that Judge Bybee’s not paying student athletes is precisely what makes them amateurs” formulation was wrong, because bylaw 16 can bar much more than just player pay: the LOD is crossed when any ‘extra benefit’ is given to the player, by anyone.

But the single most important provision in the entire 460-page NCAA Manual for defining, “precisely what makes an amateur” is this bylaw 16 definition of what is NOT a ‘extra benefit’:

“receipt of a benefit by student-athletes or their relatives or friends is not a violation of NCAA legislation, if it is demonstrated that the same benefit is generally available to the institution’s students or their relatives or friends or to a particular segment of the student body (e.g., international students, minority students) determined on a basis unrelated to athletics ability.”

And the UNC decision was revolutionary, not primarily because it pronounced an NCAA lack of interest in overseeing academic matters, but because: 1) the COI bothered to read this “Not-Extra-Benefit” provision, and then 2) applied the bylaw’s Comparative Test, to accurately conclude that the UNC paper courses were “generally available to the institution’s students or their relatives or friends or to a particular segment of the student body.”

Why is this bylaw 16 provision the clearest definition of “precisely what makes an amateur”? Because it operates, as the UNC decision shows, as a giant “Carve -Out”: a benefit cannot possibly be ‘extra,’ if it is “available to a particular segment of the student body.” An amateur, this Carve-Out tells us, is one who can, in reality, receive one of the many kinds of benefits which a “particular segment of the student body” also gets.

And note that the standard of proof to satisfy this Carve-Out, is remarkably easy. The required comparison is not to a “large,” or “significant,” or even “well-established” segment: just a “particular” one. Nor does the comparison apparently apply only to ‘benefits’ received by the player from the school; it appears to apply to any benefit received by the player from any source. And to comprehend the breadth of this Carve-Out, it is important to note that it applies, not just to player receipt of in-kind benefits, or some special ‘privilege’: it also applies to any kind of pay.

The practical result?: If any school is accused by the NCAA of providing ‘illegal’ ‘extra-benefits’, or if a player is accused of receiving them, all they have to do is find some “particular segment of the student body” to which such benefits are available. The list of relevant “particular segments” is so long, if not endless, as to allow this Carve-Out to apply to almost every kind of benefit, including pay, which a player might receive. Central Florida kicker Don De Haye’s youtube-video money-making “benefits,” for example, or Texas A&M runner Ryan Trahan’s steel water-bottle sales money-making benefits?”: on those mammoth campuses, are there not “particular segments” of students getting the same benefit? Or, more broadly, if the school pays cash to the player for his performance as an athlete, doesn’t that comply with bylaw 16, because it is the kind of benefit “available” to a number of “particular segments” of students, like those who have paid work-study jobs all over campus, or like the students paid by the school to usher at football games where the player performs? The Rule 16 Carve-Out, sports fans, can be read to “precisely” allow pay-for-play, to the player, by the school.

In its UNC case, the courageous NCAA COI looked bylaw 16 straight in the face, read its plain terms, put on their seat-belts, and correctly applied that bylaw’s simple rule that a benefit is not extra if it is also available to a particular segment of students. By so doing, their decision suggested that little or no change in NCAA bylaws is required, and that a new wide variety of benefits can be allowed to flow to players — and that the Rice Commission may have wasted time and effort.

The Rice Commission should have sent Condoleezza Rice to the podium to read the following statement:

“Ladies and Gentlemen: ‘Precisely what makes an amateur’ is not that the player is unpaid. Bylaw 16 says, ‘receipt of a benefit by student-athletes or their relatives or friends is not a violation of NCAA legislation, if it is demonstrated that the same benefit is generally available to the institution’s students or their relatives or friends or to a particular segment of the student body (e.g., international students, minority students) determined on a basis unrelated to athletics ability.’ Apply bylaw 16. Thank you.”

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NCAA Basketball Indictments Say: Alumni Booster, Thy Home Might be the Federal Pen

The college basketball indictments have taken a new turn: more specific allegations about payments by some college coaches to players have been added to the previous charges that Adidas had colluded with agents and financial advisors to insure that players might attend specific schools, with the expectation that those players (advancing toward what would, presumably, be lucrative careers), would later also sign on with the agents or financial advisors.

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The indictments last fall, and the new ones, have changed the entire NCAA enforcement paradigm, though you’d never know by listening to the NCAA. They don’t even know it. They are paralyzed. Yes, NCAA executive director has set up the ‘blue ribbon’ Condi Commission, chaired by Condoleeza Rice. But all of NCAA has, like some misbehaving schoolchild, gone into ‘time-out,’ in several respects. First, Emmert insists that no investigations concerning all these allegations can be undertaken by the NCAA, while the U.S. Attorney, and the FBI, complete their work. This is nonsense, for two reasons. First, the standard of proof for NCAA violations — preponderance of the evidence — is tiny and easy compared to the “beyond a reasonable doubt” standard in the criminal setting. Second, the NCAA, dependent as it is upon self-reporting, also depends heavily upon what are called ‘interim’ or ‘provisional’ orders, imposed either by the NCAA or, oftentimes, the school itself. This practice is built upon the high-minded NCAA notion that its games, and participants, must always be lily-white and without any hint of taint — even if that requires provisionally suspended participants who have only been charged with some violation. Countless players have been, as a result, “held out” of games, in order to preserve their purity.

But the NCAA has refused to investigate any of the circumstances arising out of the recent indictments; as a result, it has also failed to take any minimal steps to determine the foundation for, and then act upon, the need for such provisional suspensions of involved coaches, schools, and even players.

And even though the NCAA and all their member-school compliance operations spend significant resources to alert and scold their constituency about the need to avoid any possible violation of any NCAA rules, they have failed to alert those constituencies about the game-changing nature of the 2017 and 2018 federal indictments: that the violation of NCAA ‘extra-benefits’ legislation is now, according to the U.S. Attorney for the Southern District of New York, a solid, ripe basis for federal criminal charges.

For a simple example of this new, serious federal criminal peril which any potential booster might encounter, look only at the 2017 NCAA heavy penalties for Ole Miss, associated with an number of different violations, many generated by boosters providing ‘extra,’ proscribed benefits to athletes. Because the statute of limitations on those actions have not yet run, every single one of those booster violations, well-documented by the NCAA COI, are open, obvious, potential federal criminal statute violations, based upon the premise behind the recent indictments. Illegal boosters always had reason to fear the NCAA enforcement arm; now, all those boosters, over the last five years, ought be worrying about federal indictments related to those same underlying NCAA violations.

Alumni booster, thy home might be the federal pen.

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AD’s, Paid Like Egyptian Pharoahs, Plan Sunny Pow-Wow to Figure How to Save Empire

These AD’s are out of control. They’ve announced, as they call it, a “sunny” pow-wow, “by AD’s, for AD’s,” of what they grandly call a “Collegiate Sports Summit,” to take place April 16-17, at the Fairmount Miramar Hotel and Bungalows in Santa Monica.

The headliners are (among others) Penn State’s Barbour, UNC’s Cunningham, Notre Dame’s Swarbrick, and UDub’s Jennifer Cohen.

Why is this so ‘Private?

The first question: why is this at all necessary, and who is paying for it? Don’t these same ostensible leaders of college sports have their very own trade group, answerable to nobody, to promote their own interests, which is called LEAD1. And isn’t LEAD1 fabulously funded by corporate interests (DHR International, ESPN, EverFi, Private Jet Services, VitoVio, Paciolan (a Learfield Co.), Fiesta Bowl, Learfield, MintzLevin, Tailgate Guys, Viscis, Nike, MG12, Anthony Travel, GoGround, Sidearm Sports (Div of Learfield)?

And if they do, why is this confab — described as “your private, invitation-only gathering, designed by ADs, for ADs, [as] your chance to connect with peers, get up-to-speed on the hottest trends and tackle today’s top challenges in a transparent, forthright forum” — at all necessary? Aren’t most of these people of considerable self-importance actually public employees? If so, why the emphasis on a “private, invitation-only gathering”? Wasn’t that what their own ‘private’ LEAD1 trade group was all about when it met in September, with its Washington lobbyist?

Who is Paying for All This?

Second: who is paying for this? Are not all athletic departments starving for cash, having to spend on all the many things which these AD’s deem necessary? And aren’t these AD’s all shelling out big buck to pay for a big-number ex-Congressman like Tom McMillen to serve as their very own K-Street lobbyist?

This ‘Private’ Confab Needs Ten College BKB and FB Players

What’s up with this meeting?  And could it not benefit substantially from the presence of ten big-time college football and basketball players, who can give these wise men and women some input, as they deliberate about a fate which will impact, most primarily and directly, upon those extraordinarily valuable football and basketball player-assets?

This is a question for all those “leaders” who are members of LEAD1: why do you need another warm-weather pow-wow?  Weren’t you just in D.C., in an effort to gather to influence legislators, on behalf of only your own personal financial interests, in September? What possibly could warrant the $5-10 grand per AD AD cost? And are you convinced that only you can provide competent answers to the questions which now plague college sports?

 

 

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This is the Ryan Shazier Super Bowl: Put Your Hand on Your Heart

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I’m troubled about the Super Bowl tomorrow. Yes, the Pats remind me of the old Larry Bird Boston Celtics era, when you left the game, or the broadcast, wanting to thank the sports gods that you have been allowed to watch something so elegantly executed.

But any thoughts about the potential beauty and perfection of this Super Bowl game and its players have vanished over the week, because I keep thinking about Ryan Shazier, the electric Steelers (and formerly OSU) linebacker, who went down this season with a savage injury. Continue reading

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