Gee & Smith Violate NCAA Ethics Bylaw 10.1: Their Failure to Report Potential Violation to NCAA for Three Weeks

Gee & Smith:  make false statements to the NCAA tribunal; violate duty of good faith and fair dealing with NCAA

There are many deceptions and false statements in the July 7 Response to NCAA Notice of Allegation submitted by OSU President Gee and Athletic Director Gene Smith.  What has gone unnoticed is clear evidence in the public record which shows that Gee and Smith committed their own ethics violation of Bylaw 10.1, independent of the many by Coach Tressel, by failing to report a potential violation of NCAA rules for three weeks. Let me repeat: this is a separate and distinct violation by OSU’s two top leaders. And it is evidence of how rotten things in the Columbus Athletics/Academic complex have gotten, how clearly the efforts of Gee and Smith have been directed primarily toward just “containing” the damage, as opposed to ferreting out the truth — and clear evidence of profound “lack of institutional control.”

Recall that Tressel got the “Cicero” emails on April 2, 2010, which alerted him to “potential” violations of NCAA Bylaws by his players for allegedly selling memorabilia, and that JT violated his obligation to: immediately report that information to OSU and the NCAA; report them on an annual submission to the NCAA in Sept. ’10; and report them when repeatedly asked about the topics in interviews after the Feds’s letter exposed the memorabilia sales. Then on Jan. 13, OSU independently discovered the Cicero emails.

Also recall all the hub-bub in late Dec. about whether the OSU players (including Pryor) would play in the year-end bowl game, which required the involvement of the NCAA’s SAR people, and which resulted (incredibly) in permitting the players to participate in the bowl game, with the imposition of later (Fall ’11) suspensions by the players.  But also recall that this result, imposed by the NCAA, was appealed by OSU.  That appeal was pending on Jan. 13, when the Bombshell Cicero emails were discovered by OSU, and a decision on the appeal (denied) issued on March 15.

Freeze Frame on Jan. 13:   a) Gee & Smith had filed a Dec. 16 Self Report which they now know, as of Jan. 13, was false; b) There is a pending appeal by OSU of the NCAA “suspensions” for trinket sales – this issue, and the “playing-in-bowl-game” controversy, generated huge national attention;  c) the  Cicero emails are directly and obviously profoundly relevant to the Dec. 16 Self-Report, and any action, or even ongoing analysis, which the NCAA SAR person might take; d) OSU has had ongoing, frequent, and constant contact with the NCAA ever since OSU reported the information contained in the Feds letter in their mid-December Self-Report. (Ergo, they have SAR’s email address and phone number.)

But add to the Freeze Frame this: the emails discovered are clear, unequivocal evidence of a “potential violation” by Jim Tressel of NCAA Bylaws. Specifically, no objective reviewer could fail to conclude on Jan. 13 the following:  that there is a potential that JT “failed to report” for 9 months.  

So — what does OSU do on Jan. 13?  :  Let’s look at their Gee &  Smith’s description from their July 7 Response:

On January 13, while reviewing information on an unrelated legal issue, the institution’s Office of Legal Affairs discovered an email from Tressel that related to the subject matter of certain activities contained in the University’s 2010 Self Report. The OLA notified appropriate institutional officials, and an additional inquiry began immediately…. One of the first actions undertaken was a review of Tressel’s email account, telephone records and text messages. [As shown in our post of August 9, this is a false statement, which is demonstrated by reference to OSU’s Self Report of March (which was just removed from OSU’s website, after my post.)  That Self Report refers only to OSU doing a review of JT’s Emails.] ” This search uncovered three email strings between Tressel and Columbus area attorney Cicero relating to this matter and to certain Student Athletes.   Two strings occurred in April 2010 and one in June 2010.” [As reflected in our last post, note that this description OMITs, for some not-so-strange reason – we think, intentionally, but the evidence is circumstantial – the email “string” of April 19.)

Whatever the case, the 7/7 Response by Gee & Smith says that

On February 4, [OSU] informed NCAA Vice Pres. for Enforcement Services Julie Roe Lach of this information and invited NCAA Enforcement Staff to participate in the institution’s ongoing investigation.”

So what we have here is, to quote from Cool Hand Luke, “A [Big Time] Failure to Communicate,” which rises to the level of concealment. And that failure is a direct violation of the duty to report to the NCAA a potential violation of Rule 10.1.

It’s more than that.  The information just discovered on Jan. 13 is “right-smack-dab” relevant to that open NCAA file.  The NCAA/SAR head would have LOVED to have seen those emails on Jan. 13.  Let’s put it another way:  OSU (which includes their OLA, AD Smith, Pres Gee) had a Duty of Good Faith and Fair Dealing with the NCAA.  And all that ANYONE at OSU had to do was  click on the “forward” button with their mouse!  It would have cost no money, have taken no time.

And remember, the Bylaw refers, as we knew from reviewing Tressel’s actions, to the need to report “potential” violations.  So Gee and Smith’s failure to click-forward the emails immediately to the NCAA on Jan. 13 can’t be excused because they “weren’t sure if it was a violation;” the Bylaw mandates reporting upon knowing of a POTENTIAL violation.  (Just to be clear, the prima facie indications given to any rational observer in those circumstances was that there was an EXTREMELY high probability that JT had, in fact, violated 10.1.)

So, you say, Big Deal, I mean, What’s the difference? Ok, you say, maybe they should’ve clicked “forward to NCAA” on Jan. 13, but what’s the difference?  Well, first, it’s the Cold Case factor: evidence gets older.  But it’s much more profound than that, it’s what the NCAA made a huge fuss about in their recent Ga. Tech decision:  it’s the “Tainting of Witnesses” factor by local (i.e., non-NCAA) actors, like, in that case, the AD, the Coach, the Compliance person.  What the NCAA called “Hindering” of an investigation.  Or –which is directly relevant to what went on in Columbus between Jan. 13 and Feb. 4 — what the NCAA called the “Pre-emptive” contact with witnesses.   The opportunity to coach, motivate etc witnesses. Bury or “shade” evidence.

And one other factor:  at this point, the interests of the NCAA and OSU administrators are in conflict:  the NCAA wants to get to the bottom of it (we would hope); people like Gee, Smith, others are wondering how far this scandal might go now, and whose jobs are on the line.  It’s the local bureaucracy playing defense.  All the OSU people are scrambling for cover, and to cover.

And In “real life” (not the Fairyland of NCAA investigations), this is how the NCAA would likely have responded to news — had it been immediately, timely reported by OSU on Jan. 13 – that those emails had been discovered: a) They would have first instructed OSU to put JT on leave with pay, and get him out of the workplace, so that he couldn’t “taint” the environment, or witnesses, or, say, destroy documents; b) they would have arrived on site within a day (guess what? – that’s what NCAA did after they were finally told on Feb. 4); c) they might have taken over the entire investigation — seized it from OSU.  There are a number of other steps.  This is standard behavior not just for regulatory agencies with oversight responsibilities; it is also cookbook employment law, when any employee commits some kind of irregularity.

The other more telling response to your question, “what’s the difference?” is a question in response:  “What on earth is the downside?” Give me one good (legitimate, legal, moral) reason for NOT immediately forward-clicking to the NCAA — or just calling your guy there at the NCAA.  There isn’t one.

Summary:  Gee & Smith  made the decision to  join Tressel in concealing (and not reporting to the NCAA) the Cicero emails, and this continued for three weeks. 

But then it gets wacky.  Or just plain Rinky Dink. Minor League. That’s what Gee and Smith descend to.  Look at what they wrote:  they suggest, very coyly, that the reason for this unconscionable delay was not to allow OSU to cover its tracks, but because President Gee was in China!  This is RICH!   The implicit suggestion made by G&S is that Gee was “incommunicado” while in China, and that they had to wait til he got back to inform him, and to have what they call in their Response “detailed discussions.”  Can you believe this nonsense?  You and I know Gee heard about these “Bombshell” emails, most likely, on Jan. 13, the same day the Bombshell was discovered, while he was in his five-star hotel room in Shanghai or Beijing, and was on the Five-star phone, Five-Star email, and Five-Star skype daily, for hours, to address the topic.

Remember: G&S make up this kind of “Gee-out-of-contact” fib because they know the truth: that 22-day concealment of the emails is potential fraudulent withholding of highly relevant material, from a regulatory agency to whom they owed a duty of good faith and fair dealing,  which information could have — and clearly should have, under any standard —  been forwarded in 5 seconds to the NCAA staffer who BADLY needed to see it immediately.

Actually, it’s worse than this.  The supposed “investigation” that they did?  It’s phony.  That’s 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 sanctions, NCAA Violations, OSU Football, Tressel coverup and tagged , , , , , , , . Bookmark the permalink.

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