NCAA’s Rambling Wreck of a Georgia Tech Decision: A Regulatory Agency Still Living in Fairyland – and Why Coaches Must Be NCAA- Certified

Stiffer Personal Penalties Are Required for ADs and Coaches: The NCAA’s July 14 Georgia Tech decision is one more example of why the NCAA will continue to be overwhelmed by a flood of “Infractions” cases  from all its’ superpowers: there is small personal and professional risk for the school Presidents, AD’s, Coaches and Compliance Officers when they violate NCAA By Laws. Coaches need to be certified by the NCAA, just as other trade groups certify their participants, so certification can be revoked as a powerful and instructive penalty bringing loss of earnings.  Otherwise (if the NCAA continues to issue limp decisions like this one)  these cases will continue to pop up everywhere, like Whack-A-Moles.

The trigger for much of all this was a phone call the NCAA had with the GT Compliance guy in November 2009, in which the NCAA fellow discussed information they had that an “agent” had been spotted somewhere in the GT environs, and that a couple players may have gotten athletic clothing for free from him or one of his runners.  What’s critical to know is that the NCAA staffer explicitly told the GT Compliance Guy that this information could only be revealed to the GT President and AD Radakovich —  and no one else.  To keep  the story short, let’s fast-forward, to about 10 days after that call, at which time —  I’m not kidding —  there sit in one room on the GT campus the following people:  AD Radokovich, FB Coach Johnson, the GT  Dir. of Compliance and the football “Student-Athlete” in question.  And they talk about the very facts which the NCAA staffer explicitly told Compliance not to discuss with anyone other than the GT President and AD!

Now, the  NCAA loves to call out specific players (who get paid nothing) for allegedly horrible behaviors like accepting some clothing worth a couple hundred bucks, and even make findings  as to which version told by the player is “truthful”,  but the NCAA also does everything it can not to offend the  gentle sensibilities of those million-dollar characters who coach and run departments and entire schools. It’s odd.  But so are the NCAA decisions, which read like they are the result of a high school mock trial.  Nonetheless, let’s see what rules we can glean from this one.

RULES FOR  Big Time College Coaches, AD’s and Compliance Departments, Derived From the GT Decision:

1.  Avoid Using Email:  If there is any dicey topic which you think might make you nervous, USE YOUR PHONE.  Avoid email.  (Same thing if you’re cheating on your spouse.)

2. Never Call an NCAA Investigator “demonstratively untruthful.”: Never allow your General Counsel handling your case to accuse (as did GT’s) the NCAA rep —  in writing — of being “demonstratively [sic] untruthful.”

3.  If Your AD Couldn’t Learn From Mike Garret’s Arrogance, Get Rid of Him:  Presidents, if your AD shows signs that he’s never read about how Mike Garrett’s arrogance helped bring about the NCAA’s slam of USC last year, then get rid of him.  The NCAA’s  GT decision shows that AD Radokovich presided over what is now one of the most chippy, boneheaded negotiations with, and responses to, the NCAA that anyone has ever seen. (And if Radokovich wants to blame it all on his [former] General Counsel, then someone has to be held accountable for his appointment and retention.)  Here’s a good quote from the decision about Radokovich’s Neaderthal department:  “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.”

4.  Get good representation: It helps immensely, particularly where your General Counsel is underprepared, and your AD looks and repeatedly acts (even after the decision) like a fullback who blocked head-first.

5.  Don’t “Taint” or “Hinder” NCAA Investigations: Contrary to popular belief, the NCAA Enforcement people do have some comprehension of the concept of “Tainted” interviews and “Hindered” investigations.  The decision makes much of GT’s “pre-emptive” interview with the player (after being told it would be a no-no), 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.

6.  Don’t “Manipulate” Information or Facts: The NCAA apparently doesn’t like attempts to “manipulate” information, such as the aforementioned pre-emptive player interview, but also the efforts by that same Compliance guy to “fool” ACC administrators when issues came up about whether the two players involved ought be eligible for the 2009 ACC championship game. They were deemed eligible, and the NCAA found that this resulted from said manipulation. The decision found that the Compliance Director “provided an incomplete account of the circumstances surrounding the provision of clothing” — which was a “major violation.”

7.  The NCAA is composed of gentlemen, and Must Use Gentlemanly Language at All Times. Gentlemen do Not Call Each Other Liars:  So the NCAA will only make a finding of deliberate misrepresentation or lying when they have explicit, written or photographic evidence of such a lie. [This has been in the nature of an unwritten, cardinal rule, which manifests itself in almost every NCAA decision, and which is all that real gentlemen really ever need to govern their behaviors.]

8. Exception to Rule #7 — Student-Athletes Are Not Gentlemen:   That rule doesn’t apply if you’re judging the credibility of  a PLAYER.  So, for example, in this  case, the decision found that Student-Athlete #1’s “first” version of events (from his first interview) was the “truthful version,” even though it was a “close call,” and there was no written or other documentary evidence on the issue. But players aren’t gentlemen, I guess. And they’re just students, I guess. And young, and inexperienced in the ways of the world.  And often black. And often poor.

9.  Agents for players is a really bad thing.   The NCAA first came around GT, apparently, in November ’09 because someone whispered something about “agents!”  (OSU AD Gene Smith calls them “Third Parties“!)  Scary!  –Unless, of course, those “Third Parties” happen to be calling on, say, GT Coach Paul Johnson, or even GT AD Radokovich, to negotiate their own contracts for them, or even to give them the kind of individual representation in some ongoing NCAA investigation that any gentlemen requires.

10. “Cooperation is Self-Reporting, Aiding Investigation, Fulfilling All NCAA Requests, and Not Hindering:   The Decision is somewhat explicit about the Cooperation Standards it will apply:  “whether an  institution has fulfilled its cooperation obligation,  the committee will consider whether the  institution self reported the violations or whether they were discovered by others, whether it aided in the investigation or obstructed it, and whether it fulfilled all requests from the enforcement staff in a timely and civil manner or ignored or hindered staff in fulfilling those requests.”

11.  An NCAA Person of Eminence Must Never Speak Harshly About A School’s AD, President, Coach, or Compliance Officer:  Amongst gentlemen, anyway, the use of careful, circumspect, rounded language is all that’s required to correct poor manners.  So NCAA decisions are packed with little cupcake terms meant to evaluate the questionable actions of Presidents, ADs, Coaches, and Compliance Guys.  Let’s look at some of these bonbons:

a. Page 6: “The committee was concerned with the former general counsel’s approach to the NCAA’s investigation.”   Huh? Concerned? That’s all? Isn’t that obvious?

b. “In the committee’s view, the former general counsel’s behavior in this case was a disservice to the institution.”  This one is a beauty. Again, why include this obvious platitude?

c.  Page 9: “We are saying there was a poor decision by the (compliance director)
and the (director of athletics), but the (head football coach), for whatever it
is worth,  was never told [of the need to keep all information concerning the player/agent/clothing events held closely only by the Pres. and AD) is an institutional directive from the enforcement staff.  WHAT? Poor Decision? What planet is this Committee on? This is not grade school, where they try to teach you about making “good life decisions.”

d. Page 9: [We require that] “all individuals who are subject to NCAA rules protect the integrity of an investigation. A failure to do so may be a violation of the principles of ethical conduct.”  MAY BE?  Here we find the NCAA showing their hand.  They know that some serious ethical issues are presented by GT’s conduct, as regards By Law 10.1.   But that’s much too messy to talk about when you’re dealing with gentlemen.  So they bring it up, and drop it — willy-nilly, with no explanation.

e.  Page 9:  “the successful adjudication of infractions cases is heavily dependent on the good faith efforts and, most importantly, the full and complete cooperation of member institutions and other involved parties under investigation by the enforcement staff.”  This is rich. Again, the Committee shows they are aware that the actions of GT should be subject to a reasonable standard of good faith. But they bring it up, and again, drop that hot potato — quick.

But hold that “Good faith question” notion for a minute, along with the “violation of ethical principles” idea, while we first look at part of the remedy, and then go back and look at that GT meeting I mentioned at the top.

12. The NCAA Will Always Presume That, In the End, It’s All Just A Lack of Education: The penalties are heavy on properly educating the participants:  Page 19:

—” The director of athletics, the head football coach, the compliance director and the
academic advisor shall attend an NCAA Regional Rules Seminar in 2012.”

— [GT shall] “continue to develop and implement a comprehensive educational program
on NCAA legislation, including seminars and testing, to instruct the
coaches, the faculty athletics representative, all athletics department
personnel and all  institution staff members with responsibility for the
certification of student-athletes for admission, retention, financial aid or competition.”
—  [GT shall] “Submit a preliminary report to the office of the Committees on Infractions by  9/1/11, setting forth a schedule for establishing this compliance and educational program.

13.  The Enforcement Committee’s Knee-Jerk “More-Education Remedy” has no applicability to the underlying cause of the violations in this case, and is a ruse meant to make the public think that some real adjudication has occurred:   There is no evidence anywhere in the decision that any of the violations committed by GT, whether by President, AD Radokovich, Coach Johnson, or Compliance, were in any way the result of lack of education.  None of them ever even claimed they didn’t know the rules.  This wasn’t a case of “Oh, I didn’t know.”  It was intentional behavior.

14.  Cold Hard Reality Will Be Ignored by NCAA:   Back to the Meeting.  Remember, the NCAA told  Compliance Director in a phone call in early November about the “whiff” of agent-presence, and that two Student-Athletes may have “illegally” gotten clothing from him or his runner — AND that this information should be told to no one other than the AD and President.   So what does Compliance Director do?  He tells President and AD Rasdakovich.   Some ten days later, the meeting includes AD Rasdakovich, Coach Johnson, Compliance Director, Asst Compliance Officer, and the Student Athlete., where there is explicit discussion of all the facts — in direct contravention of the mandate by the NCAA.

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 — AD and head FB Coach, in a room with who?:  the Player.  Think he’s scared?  Think he knows what’s expected of him? — to shade the truth?   And also the Compliance Officer:  he had told the AD the information shouldn’t go elsewhere.  Not only did AD take it elsewhere, AD Rasdokovich engineered the facts — yes, manipulated the facts — by strong-arming the participants in that room to: a) on the part of the player — shade the facts; and b) on the part of the Compliance Officer — ignore the “keep it to AD & Pres” mandate of the NCAA.  What kind of lesson —  or “atmosphere” has been created there in that room?  And is it a symptom of a broad, messy problem at GT?

Now, recall the “good faith” and “ethical principles” question mentioned in passing by the NCAA’s findings. Also recall Rule #7 (Gentlemen Do Not Call Each Other Liars.)  Then consider whether AD Radakovich engaged in deliberate, knowing conduct which directly contravened not just several NCAA By Laws, but also an explicit, case-specific order by the NCAA.  Then consider Rule #8 above, which says that #7 only applies to Pres, AD, Coach and Compliance Officers, and allowed the NCAA to make an explicit finding in this case that the Player “told the truth” in his “first” version, even though it was a “close call.”   Why not make a finding about the “truth” of what AD Radakovich asserts? Really.  Why not make a finding about whether his behavior, and  the behavior of Coach Johnson, was intentional?

This is the heart of the case:  it isn’t, for the average reasonable guy, based on what’s cited in the decision, even a close call as to whether AD Radakovich deliberately and intentionally violated — and forced others —  in the midst of a meeting which he called — to violate explicit NCAA By Laws requiring ethical and good faith behavior.  The AD deliberately passed it on to Coach Johnson, and never said he didn’t know about the need to keep it from him.  And –we don’t know  from the Decision if AD Radakovich told Coach Johnson that the information was not to be transmitted elsewhere.  If he didn’t, then he is complicit and partially responsible for Coach Johnson’s violation of the NCAA’s direct mandate.

What’s the point?  The Enforcement Committee lacked the will and courage to confront what is obvious to the reasonably objective reviewer of the evidence: that GT “lacked institutional control” and that members of its’ staff engaged in unethical behavior in violation of Rule 10.1

This is harsh, you say.  Well then, let’s ponder what the NCAA is telling Coaches and AD’s with its’ current GT decision:  School pays a little cash. (Any AD thinks privately, “it’s just a cost of doing  business.”)  Vacated decisions. (Any AD thinks, “well, I’ll take some heat, but it’s like the asterisk on Roger Maris’ home run record. People forget.)  4 Years of Probation. (Any AD thinks, this hurts.  But thank God I’m not losing my $3/4 million per year.)

Think that’s unfair?  Look at what these fellows said at the Press Conference yesterday:

Paul Johnson, GT Coach: “I think our guys are frustrated. I understand why our administration did what they did. It’s frustrating when you aren’t directly involved in something and it effects you in such a big way.” (Atlanta Journal, 7/15)

Paul Johnson:  ““I told them that sometimes things that happen aren’t fair.  As I said, I understand why our administration did what they did given the information they have. I have a lot of respect for Dan and Dr. Peterson. They made decisions based upon what was available to them at the time. I’m not going to second-guess them now.”     Think Johnson’s passing the buck?  He certainly think he didn’t do anything wrong, even though he “hindered” and “tainted” the investigation by going directly to the player involved.

And the AD? From Radakovich, at yesterday’s Press Conference:
“There was no intent to influence testimony. We cooperated fully during process.”
“We don’t agree with the report and its findings.”
“Not a proud day for me.”
“Georgia Tech should not be placed in a position where its integrity is challenged.”
“We disagree but we will move forward.”

No weekend seminar is going to do anything to those thick heads.

What’s the point?  Here’s a hint, buried in the “penalty” section of the NCAA decision, at Page 19:

[GT must] “Continue to develop and implement a comprehensive educational program
on NCAA legislation, including seminars and testing, to instruct the
coaches, the faculty athletics representative, all athletics department
personnel and all  institution staff members with responsibility for the
certification of student-athletes for admission, retention, financial aid or competition.

There it is.  Student -Athletes are “Certified.”  Coaches and AD’s, who are paid millions to run big businesses — ethically and in good faith, presumably — ought to be certified.  For Crissake, you hairdresser and your plumber require certification.  Why is this important: because it allows the NCAA to use revocation of certification (and loss of earning power) as a sanction.  Money — or the absence of money — talks.  Until the NCAA does that, their investigations are shams — “gentlemanly” shams.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Bud Peterson, Certification of NCAA Coaches, Coach Paul Johnson, Dan Radakovich and tagged , , , , . Bookmark the permalink.

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