Lies to the NCAA: Creepy Deceit by OSU’s Elwood Gee and Gene Smith

Today’s the hearing in Indianapolis. As we pointed out in our last post (OSU Yanks Its’ March 8  “Self-Report to NCAA” from Website), OSU mysteriously took down from its’ website a public document — their 3/8 “Self Report to the NCAA“-  and that happened within 24-48 hours after we posted about the false statements in that document and in their 7/7 Response to NCAA.  So now they are burying their own documents.  Covering up The Cover-up.  And we also showed, in our post two days ago, (Gee & Smith Violate NCAA Ethics By Law 10.1, By Failing to Report Potential Violation for Three Weeks), how OSU Pres. Gee and AD Smith committed their own Bylaw 10.1 Ethics violation, by failing to timely report a “potential” NCAA violation when they first discovered the Cicero emails; they sat on them for 22 days, while the assigned NCAA staffer already on the case was kept in the dark.  In the Real World, we call that fraudulent concealment.  By Gee and Smith.  What they found, on Jan. 13 required them to report the “potential violation” by JT.  PRONTO.  But the problem is much more significant than that, and their response here illustrates how far their behavior has veered from commonly accepted business standards: what they found provided them with a reasonable basis for concluding that JT had been involved in a profound, thorough, and long-lasting effort to defraud the NCAA.   Any garden-variety ethics precepts mandate that, upon discovering that kind of “potential” behavior, the “discoverer” needs to insure that immediately — and I mean immediately –he makes explicitly clear to the potentially defrauded party that the evidence of potential fraud has come to the fore. Otherwise: he becomes party to the fraud.  This is particularly true when, as here, OSU was already a “charged” party, pertaining to the NCAA’s effort to investigate and, potentially, punish OSU and players for their underlying “memorabilia” related transactions.  So here, to be specific, the fraud generated by Gee and Smith for 3 weeks last January and February, while they — for no plausible good reason other than their OWN need to shape, change, or bury the evidence — held onto evidence which should have been expeditiously forwarded to the NCAA.   If I were the COI, I would be FURIOUS, and  I would want to see ALL communications from OSU to the NCAA, from Jan. 13 through Feb. 4, to get the entire context of this fraud perpetrated on the NCAA during that period by OSU.

Now we’ll outline the major deceptions in that July 7 “Response to NCAA” filed by Gee and Smith. Before we list those deceits, here’s a quick recitation of some proposed “First Principles,” about which no one can quibble, for this discussion:

1. Self-Reporting is the NCAA’s Main Workhorse:  The entire NCAA regulatory/investigatory/enforcement framework rides on one primary workhorse: Self-Reporting of Any Potential Violation.   If anyone knocks the knees out from under that Main Workhorse, the entire framework disappears.

2.  Self-Investigation by the School is the Second Most Important Workhorse:  the school has the obligation to conduct a timely and good faith investigation of any reported potential violation.

3.   Jim Tressel is organized and decisive:  Here’s a subjective statement, but I defy anyone – other than Gee and Smith, who are on the planet Jupiter, and lying – to disagree.  Jim Tressel might be one of the most organized, detail-oriented and decisive people anybody, anywhere knows.

4.   Penalties Must Be Based on an Assessment as to Whether the Violation “Reflects a General Disregard for the Governing Rules:  NCAA ByLaw 19.01.5  states: As a guiding principle, a penalty imposed under NCAA enforcement policies and procedures should be broad and severe if the violation or violations reflect a general disregard for the governing rules; in those instances in which the violation or violations are isolated and of relative insignificance, then the NCAA penalty shall be specific and limited. Previous violations of NCAA legislation shall be a contributing factor in determining the degree of penalty.

5. Cold Cases are Usually Unsolved, or Only Partially Solved, Cases:  It’s exponentially much more difficult to successfully and thoroughly investigate any case –  and come up with good solid findings which are much more than decent guesses –  when you find out about the wrongdoing weeks or months, or years after the events, not just because the facts are “cold”, but also because the witnesses can be “tainted” by “pre-emptive” contact with those witnesses. [Terms used by the NCAA in its July 2011 Geo.Tech/NCAA decision, which castigates Ga. Tech’s AD, Coach, and Compliance for taking those kinds of tainting steps – in circumstances, by the way, which demonstrate violations which — at least as compared to JT’s long, relentless subversion of the entire NCAA enforcement process –  warrant description under Bylaw 19 above as where ” the violation or violations are isolated and of relative insignificance.]

Gee and”Smith’s Response spins deceit around all five of these “First Principles.”

Now remember, Gee and Smith’s first “run” – described in their 3/8 “Self-Report” — was the subject of their Press Conference “Massacre” of March 8.  They blew it, primarily because the Self Report was so shoddy, but also because, in the intervening months, SI and ESPN shot some good-sized holes in it.  But that Self Report, and the later July Response, by Gee and Smith, were not just shoddy; they were full of deceit, which violated their duty of good faith and fair dealing with the NCAA.

So let’s track the Gee and Smith Deceits:

DECEIT #1:  JT Knew on April 2 That Two Students Sold Memorabilia:   At p. 1-11, G&S state:

The University acknowledges that in the spring of 2010, Tressel knew or should have known that at least two football student-athletes had sold institutionally-administered awards or apparel, which affected the student-athletes’ eligibility. ”

This statement is just plain false.  JT DID NOT “know — he received a REPORT from a third party.  There’s zero evidence he knew it was true. Why is this important for G&S? It helps them in their tireless effort, throughout their written response, to endorse and support JT’s excuses – including the one that he was “petrified” when he read the 4/2 Cicero email. But, in fact,  JT didn’t even know if what Cicero told him in that email was true  It was merely a rumor.  For all he knew at the time, the entire thing was false. In fact, on its’ face, because the information was “third hand” (through Cicero), and from a convicted felon, JT’s more reasonable assumption, in the circumstances, probably was that the information was not true.

And if it was a rumor, how on this God’s earth could JT possibly have been “petrified” by this email?  It’s preposterous, and doesn’t pass the straight face test.

[Let’s stop here for a second: here’s the reality which JT let slip out in his Testimony: “the head coach knows everything.”  So, very frankly, JT ,  most likely knew — before Cicero’s email — that players were getting tats and trading trinkets at Rife’s. If so, he wasn’t surprised when he got Cicero’s email. But I can’t prove any of that (Gee, Smith and OSU could have, had they done a real, legitimate investigation),  and the analysis above just assumes that JT was telling the truth when he said he was surprised by the email.]

Summary: I have a problem with Gee and Smith trying to contend that JT’s “petrified” reaction was in any way plausible — because it wasn’t. But I have a much bigger problem with them trying to deceive the NCAA about what the facts were: JT could not have known that the players were selling memorabilia, based just on reading that first Cicero email.

DECEIT #2:   Selling of Some Trinkets By Players is a MUCH More Serious Transgression Than  JT Tubing the Entire NCAA Investigatory Framework (see 1st Principles #1 & 2):

Tressel’s transgression was a failure to act on knowledge of a potential violation as opposed to committing the initial violation.

This one is a beauty, and shows how low Gee and Smith will go. G&S describe this wild proposition as a “mitigating factor”, mandating that OSU’s penalties should be lightened.

But first, notice that the word “transgression” is singular, which is a cute ploy they use throughout — even though they know full well that JT’s committed numerous, separate, and relentless violations, week after week – like false swearing, violation of duty of good faith and fair dealing, and, most likely, in Dec. 2010, fraudulent concealment on the NCAA and OSU.

But more important, JT’s unethical conduct completely removed any NCAA enforcement, or investigation for nine months; he didn’t just cripple it.  He blew it up, removed it as a factor. “Took it out.”  But G&S want you to think that selling trinkets is WORSE.  Is this what they are going to teach in the “revamped” compliance education they say they’re going to do from now on?

Summary:  this is a claim in bad faith by Gee and Smith that the bad guys are the players, not JT.  That’s right, blame it on the kids, Pee Wee Gee.

DECEIT #3: Gee & Smith Join JT in Fraudulently Concealing Important Evidence From the NCAA:   See our post of August 11 on this topic (Gee & Smith Violate NCAA Ethics Bylaw 10.1: Their Failure to Report Potential Violation to NCAA for Three Weeks).

DECEIT #4:   JT Only Did OneTiny Thing Wrong:    Gee and Smith state, at p. 1-3 of their Response:

 “The violations in this case primarily involve: ….(ii) the actions of the then head football coach in failing to report his knowledge that the student-athletes might have been involved in selling such awards or apparel/gear (unethical conduct).”

This is at the heart of the case, and is listed under a heading of “Case Severity.” But we find Gee and Smith deceiving again.  They avoid, first of all, a specific recitation of the Bylaw section violated, i.e., 10.1(d). They should have stated: “JT violated 10.1 (d) by “Knowingly furnishing the NCAA or the individual’s institution false or misleading information concerning the individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation.”  This is a quote from the Bylaw; only by reciting the specific section can the NCAA assess Gee’s position, and determine whether the appropriate penalties or corrective measures have been imposed.

Then, on the next page (p. 1-4), they continue the deception:  “His transgression was that he did not report to the appropriate institutional officials the information he learned in April 2010 that two student-athletes identified in the emails with remaining eligibility might have sold such awards or received discounts. The institution believes such behavior is not appropriate and, as a result, took a significant employment action against him.”

Did not report?”  “Is not appropriate?”   This makes it sound as though he left the screen door open one night – which is certainly “not appropriate”.  Or failed to clap the erasers at the end of class – which requires one day of detention.

Let’s put this in real-life context: if JT had reported on April 2, there would have been some player suspensions, maybe a couple games.  That’s it.   No $800,000 legal bill for OSU.  No ridicule from fans, alums, and the press.  A violation, yes. But not a blowing up of the entire NCAA regulatory framework for nine months by executing an intentional, drawn-out, complex plan to defraud the NCAA.  Knowing and intentional behavior.   But remember, Gee and Smith want to deceive the NCAA into thinking JT’s shortcoming  was just a little “Indecisiveness.”

More deceits in the next post.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
This entry was posted in Gene Smith, Georgia Tech Football, Gordon Gee, Jim Tressel, Mark Emmert, NCAA Enforcement, NCAA Investigation, NCAA Investigations, NCAA sanctions, NCAA Violations, OSU Football, Tressel coverup, Uncategorized. Bookmark the permalink.

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