OSU’s Gee & Smith Violate Their Duty of Good Faith & Fair Dealing with NCAA: A List of False Statements in Their NCAA Response

The NCAA / OSU Hearing is coming on August 12.  What the NCAA  needs to know is that OSU Pres. Gee and OSU AD Smith’s  July 7 Response to to the NCAA’s Notice of Allegations is rife with deception.  Gee and Smith are all angles, and the deception is disturbing — and violates their duty of good faith and fair dealing with the NCAA.  Neither Gee nor Smith comes anywhere close to being a leader here, by being blunt spoken, or calling things by their correct names.  More on that later, as we try to let the NCAA in on how they are being whitewashed by Gee and Smith.  But first, let’s look JUST at their false statements (we’ll analyze the deceptive ones later) made by Gee and Smith in their Response.  [For Reference, you ca also click here to see the PDF text of that Gee/Smith Response, with Annotated analysis/comments on ‘Sticky-Notes’ at NOA_Response. Also see the same for the March 7, 2011 Self-Report filed by Gee and Smith at  OSUSelfReport030811): 
From Gee and Smith’s “Introductory Statement:”
“This issue was self-detected… by The Ohio State University”
This is a false statement by Gee & Smith:  it went undetected for 8 months, until detected by the Feds, and was disclosed to OSU on Dec 7, 2010.
“His behavior in this situation is out of character for him, as he has been a man of integrity and high moral standards since his hiring as the head football coach in 2001. “   
This is a false statement by Gee and Smith:, in light of the JT ‘05-06 Annual Evaluation by former AD Geiger, which showed JT’s “unacceptable” behavior as regards Self Reporting of violations, and also showed earlier issues/discipline.. (This information became public, by way of a FOIA response on July 15, only after Gee and Smith filed this July 7 Response to NOA. But if Gee and Smith did not review JT’s prior written evaluations before making the glowing blanket statement quoted above, then their investigation was deficient and/or crafted to avoid all damning information.
“The institution will not excuse such behavior.”
This is a false statement by Gee and Smith:  Never once do Gee or Smith state that any of JT’s excuses (and they are many and colorful, and all absurd) are wrong, in error, shading of truth, impossible, unlikely, not probable, or absurd, or in bad faith. Never once do they make any negative judgement about those excuses. Moreover, they repeat those excuses over and over (ad nauseum, they are, in several places, apparently entirely “cut and pasted” in from JT’s statement.  The reader is given the overall  impression that Gee and Smith view JT excuses very favorably and also that these silly baseless factors cited by JT are legitimate. But, as regards some of those excuses, Gee and Smith explictly endorse them. For example, at p. 2-3, they state:
“[JT] said he also was protecting the confidentiality of the attorney (which the attorney requested) and of the federal criminal investigation.”  The  excuse itself is fatuous; Gee and Smith’s endorsement is similarly fatuous, as any lawyer can see. Cicero (the attorney who first tipped off JT on 4/2/10), in fact, did not request confidentiality for the first 15 days after his first email, so this excuse is irrelevant to that time period.
Second, as any lawyer knows, after Cicero mentioned “confidentiality” on April 16,  JT had no attorney/client relation with Cicero — but even that’s irrelevant too, since , even if Cicero represented JT, Tressel, as the client, was free to tell anything he wanted to anyone.  Tressel had a formal, written, well-defined duty defined in NCAA Bylaws and OSU Rule (which he knew of) to “report potential violations.”   He had no such written or unwritten duty of confidentiality to Cicero.  Yet Gee and Smith, in this circumstance, endorse JT NOT reporting, in favor of protecting what anyone knows is a bogus need for confidentiality.  so much for “understanding the significance of this matter.”  (As Gee and Smith so solemnly warrant they do.)  In summary, Gee and Smith help perpetuate and keep alive JT’s fraud by filing this Response, when they ought to be explicitly and openly condemning it.  Instead, here is Gee and Smith final conclusion on the bogus “confidentiality” excuse — which ought to floor you.
“Chris Cicero’s request that Tressel treat this information as confidential was a legitimate concern. Since Cicero’s communication to Tressel has become public, Cicero recently has been charged by the Office of Disciplinary Counsel for violating client confidences.
This is a bald attempt to deceive the NCAA, by stating it was a “legitimate concern.”  It was, in fact, a legitimate concern for Cicero, who violated his statutory duty of confidentiality to Rife (a violation which, by the way, strengthens the evidence that Cicero was acting as a “representative” of OSU’s interest at the time, because the violation was against Cicero’s own interest.)   But the concern has zero legitimacy as regards excusing JT’s failure to report this information to OSU and NCAA.

Some suggested questions, therefore, for the NCAA to ask Gee and Smith at  the Hearing:
1. Is it your position that our ByLaws allow a coach or other OSU employee
to not report a potential violation if the source of that information has asked that it be kept confidential?  Please explain.

2. Is it your position that our Bylaws allow a coach to “prioritize” a criminal investigation, by not reporting a potential violation which is the subject of a potential criminal investigation?

3. Is it your position that our Bylaws allow a coach or other OSU employee to not report a potential violation if there are “extenuating circumstances”?  If so, what are those, and where exactly do you find those in the Bylaws?

4. Is it your position that our Bylaws allow a coach or other OSU employee to not report a potential violation if that person concludes that to do so would interfere with a potential criminal investigation?

It’s a pathetic irony that the only JT excuse which Gee and Smith do not implicitly endorse by  repeatedly recounting it in their Response is this one:
[p.40  of Transcript]:    You’re using your words, you were scared and frightened, okay?
Jim Tressel: Yeah, yeah.
Chuck Smrt: So why not go to someone?
Jim Tressel: ’Cause I couldn’t figure out who.

Now ask yourself: Gee and Smith implicitly endorse a long lists of all of JT’s many zany excuses —  except this one?  Do you wonder why they left it off?  Not because it’s false and preposterous [it is — he could’ve even just called  the anonymous OSU compliance hotline number], but because it could hurt Gee and Smith — because it suggests that OSU did not train and educate coaches well enough. Why didn’t Gee and Smith just OMIT all those other excuses too, and say, explicitly:  None of JT’s excuses hold any water, and we conclude they are in bad faith?  Or, would it be so very much to challenge Gee and Smith’s wayward sense of morality by suggesting that they ought explicitly condemn, at a minimum, this one phony Tressel excuse?

p. 1-2   “One of the first actions undertaken by the Institution was a search of JT’s email account, telephone records, and text messages.”
This is a false statement by Gee and Smith: . Reference to the March 8 Gee and Smith Self Report shows that, by that time, Gee & Smith had reviewed ONLY the emails TO JT (and not the emails FROM JT.)  Nor had they reviewed JT’s  texts or phone records by that time.  So there is no way that review of JT’s phone and texts, or his “From” emails, were anywhere close to being “one of the first actions” taken by Gee and Smith. In fact, if you read the whole record, you realize that OSU probably never reviewed JT’s texts (if they did at all, since they still now curiously fail to quote from the bombshell ones of Dec. 24) until they were forced to —  when Cicero first brought them up in his interview!  Which raises another interesting deduction:  they never talked to Cicero (even thought they said they interviewed “several people” before they filed their Self-Report of March 8!)

1-3  “Two [email] strings occurred in April [2010]”.  
This is a false statement by Gee and Smith:  In fact, there were three such email “strings”.  This is not a minor point, because of JT’s wacky “I was so scared I couldn’t act” excuse, and also Gee and Smith’ excuse that JT’s fraud was the result of  “Indecisiveness.”  The existence of three separate sets of emails to “third parties”, within the first 17 days after the first Cicero email, shows conclusively: a) JT was Acting on a  2) Plan which he 3) Decided to implement.  In effect, it shows three separate “decisions” which run contrary to Gee & Smith’s preposterous excuse of JT “Indecisiveness.”

We’ll post a little later on the “Deceptions” which are rife in Gee and Smith Response.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Corrective Actions, Gene Smith, Gordon Gee, Jim Tressel, Mark Emmert, NCAA Enforcement, NCAA Investigation, NCAA sanctions, NCAA Violations, OSU Football, Sarniak, Sports Illustrated, Tressel coverup. Bookmark the permalink.

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