So Much for Enforcement: NCAA Swallows the Hook, Line and Sinker

Let’s take a look at this decision of November 4.  It’s  packed with some excellent findings of fact.  But the decision is also badly flawed, written with the sort of “make-believe” world approach one might more commonly find in a student judiciary proceeding in a high school or college.  Why do I say that? Because — as is common in student judicial systems – the NCAA made no attempt to earnestly evaluate the credibility of any witness. (The only adverse conclusion it made about the credibility of a witness was the result of a confession by Grad Asst. Alex Herron that he had initially lied to them, in which case no diligent weighing of varying statements was required.)

Ask any small-time trial court judge, and he will tell you that, with few exceptions, any litigated case of any kind demands that the judge make some critical finding about the credibility of one or more witnesses.  It would appear that most of the characters involved in deciding these NCAA cases have never tried a real-world case, because this “we take everyone at their word” approach is the kind of ostensible virginal naivete found only in schoolkid proceedings.

Let’s take a look at a few illustrations, quoted from the NCAA’s Nov. 4 decision:

Page 1: “No student-athletes were substantially harmed.”

Page one lists the numerous violations, and concludes with the statement, which is, apparently, supposed to comfort us about the NCAA’s ability to encourage their member institutions to take seriously the entire NCAA enforcement process: “no student-athletes were substantially harmed.”

This is stated seriously. Really, it’s with a complete straight face. So make note, all AD’s and Compliance Officers, the suggestion here:  the NCAA is offended only by “Substantial Harm” to players.  If it’s not substantial, it’s not relevant. If it’s just plain garden-variety, pedestrian “Harm” to players — not to worry!  Cuff them about the ears? — not important. This is an organization which purports to “self-enforce” violations by its’ members — and this is the kind of vacuous thinking one gets as a result. Who wrote this pablum?

Page 1 “The committee was particularly concerned that, even after the head football coach and his staff were specifically educated on multiple occasions regarding the rules that were eventually violated, the violations continued.”

Who are these morons? Any hack Private Investigator, or DA trying scores of cases every week concerning rinky-dink evictions, minor criminal matters, and even run-of-the-mill speeding violations, would giggle about this kind of weak-kneed and gutless statement — in light of the obvious alternative which would immediately cross any mind equipped with even just a moderate amount of healthy skepticism:  that Rich Rodriguez was just plain lying and covering up. CSI on Sunday nights would have the piercing lights in Rodriguez’ eyes, while he sits in a windowless room with celadon walls, and the investigator asks him, straight-on, three questions: 1) Mr. Rodriguez, are you telling me you never “heard” Judy Van Horn repeatedly tell you, in meeting after meeting, about the NCAA’s preoccupation with “coach-number” and “practice-amount” issues?; then 2) And you never read the endless handout materials –about those very rules– which Ms. Van Horn gave you – over and over?; and – finally  3) You’re also telling me that every one of your other 11 coaches also never “heard” Ms. Van Horn, or “read”  her handouts, month after month?

And, any good lawyer, faced with Rich Rod’s odd but repeated Lee Harvey Oswald-type “raised-eyebrow” look, would run RR through every one of those many Handouts which RR admits he received from Judy Van Horn.  RR would be made a fool.  But the good lawyer wouldn’t stop there, either. He would call to the stand every one of the other 11 coaches who attended all those Compliance Briefing Judy Van Horn held, and ask each of them the very same questions?  Why? It’s the heart of the case:  it’s impossible that all 12 people “didn’t hear”, or “didn’t read” at all those sessions.

This is what results, apparently, from a “member-based-institution” investigating one its’ own members; it is not, as a general rule, the kind of result which obtains in a truly adversarial system, in which the opposing attorney would keep the fact-finding judge “honest.”

Page 6:  “the committee was concerned that the institution’s compliance staff advised the football staff via a memorandum in both March ‘08 and March ‘09  that such activities [Strength and Conditioning Staff’s illegal disciplinary/punishment “exercises] were impermissible, yet the S&C staff conducted them anyway.”

Again, more expressions of “concern.”  Does this repeated “concern” invoke any reasonable suspicion about the ludicrous protestations of “ignorance” provided to the Enforcement Staff by S&C Staff, Rich Rodriguez, and his 11 coaches?  Not a chance.

Page 10:  “In fact, as earlier noted, the compliance office specially educated the football staff that QC personnel could not conduct any on-or-off field practice activities.”

Why this is buried on Page Ten is a mystery; This finding is central to the entire case. In a normal legal settings (which is not the kangaroo-court NCAA adjudicative process), an intelligent judge would tell the jury: “this finding creates a presumption that any violations which occurred were KNOWING violations, on the part of the Head Coach.”  But the NCAA’s investigation has no integrity, and they mean to sweep under the rug the significant structural and operational problems at UM, so they just blithely never bother to grapple with this issue of the Head Coach’s (now clearly established) “knowledge” at the time of the violations. Did these people ever go to law school?  Or is the entire organization now so thoroughly infected by the influx of billions of TV dollars that regard for the truth long since flew out the window?

Page 14-15:  The decision contains the long list of very well documented efforts by the Compliance Staff to obtain practice-time  and coach-number information. (See also the excellent Timeline at p. 19, et seq., which is outlines in lucid detail the damning and long set of events which show that RR knew everything about what was going on.)  And Judy Van Horn just got sent packing to South Carolina. The UM Filing hung her out to dry, with — as now unequivocally established by the NCAA findings –  no justification.  At least the NCAA figured out one critical fact:  Van Horn is a professional, who did her job perfectly.  But Brandon could care less; he wants her gone.

Page 15: “Finally, the former Director of Athletics [– that’s Bill Martin, who mysteriously fled the UM scene like a frantic fugitive in December ‘09, after having had bizarre physical encounters with student monitors, and the police, inside the Stadium Press Box in Sept. and Oct. ‘09 —  and after he realized that the Freep had “blown up” his assiduous year-long efforts to hide all these NCAA violations] ….and the senior director of athletics failed to require the football staff to submit the forms as required. This collective failure partly resulted in the violations outlined [above.]

Ah yes, understatement. No recitation of the long nine months during which this “failure” continued. No mention of the May ‘09 Audit which Martin intentionally subverted. But Rich Rod got a huge “pass” here; aren’t Martin [and Sr. AD Parker] just as deserving?  Why not? None of these findings has any integrity.

So – as Miss Newcombe, my first grade teacher always asked — What have we learned from this experience? The following:

1) That UM had good lawyers, who told them: you can run out all kinds of outlandish pablum in your response, and the NCAA will buy it. Score a 10 out of 10 for UM’s lawyers.

2) That the NCAA is capable of climbing right in bed with a “big-time”  member like UM, and giving its’ big-time Head Coach a blanket “get-out-jail” card for any violations, as long as he and the institution are brazen enough to maintain a straight face while insisting that the Head Coach had “no knowledge” or was “just mistaken”  [This is, you will be amused to know, the same defense which UConn has asserted in response to the  pending charges against their “Big Time” Basketball Head Coach, Jim Calhoun.]

3) There is an iron-clad presumption applied by the NCAA in sorting out admitted ByLaw violations: that any Head Coach testifying before it is always telling the truth.  The NCAA has no interest in challenging the credibility of member-institution Head Coaches.

4) That — whatever you may think about Rich Rodriguez’ competency as a football coach, or about the objective relative importance of excess coaching and excess practice-time violations — Rich Rod has shown his colors, and will lie to to cover up.

5) Possibly that, as someone once said, “If you tell a lie big enough and keep repeating it, people will come to believe it.”

6) That, whatever the case,  the NCAA has maneuvered itself into a difficult cul-de-sac.  Because of their illogical procedural rules, they told themselves they could not consider the facts of their [pending] case against WVU and Rich Rod.  So — get this — at the same time they made all these (useless)  statements about having been “concerned” about RR having been educated on all these Bylaws which were violated, there was already out and about everywhere the NCAA’s own conclusions about RR’s tenure at WVU — in which they have specifically charged that the WVU Compliance staff told RR about his excess coach and excess practice-time violations — and he kept on doing it!   Sound familiar?

So, if you happen by the President’s house some evening this month, and happen to hear the Thin Lady (Coleman), David Brandon and Rich Rod singing a rousing a capella version of ‘The Victors’ on back stone terrace,  stop to remind them that the Fat Lady has not yet sung. Rodriguez  is still subject to sanction in the WVU case.  And — even more important — statements by fact witnesses in the WVU NCAA proceedings, and findings by the NCAA – may squarely contradict RR’s loony (but now NCAA-endorsed) claims in the UM case that he “didn’t know.”

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Bill Martin, Corrective Actions, David Brandon, Mary Sue Coleman, Michigan Football, NCAA Investigation, NCAA sanctions, NCAA Violations, Rich Rodriguez, Uncategorized, University of Michigan, WVU Football and tagged , , , , , , , , , , , , , , , , . Bookmark the permalink.

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