I knew a fellow once who was a hard-charging, “Give-Em-Hell” ex-Marine lawyer, who fought tooth and nail and, in fact, loved the conflict. Relentless, except that he’s dead now. But he had a moral compass. A very alert moral compass. If, in the middle of complex, intense combat or discussion or negotiation, he found some fundamental moral failing by one of the participants — lying, fraud, subornation of perjury, or just failure to tell the truth — he stopped dead in his tracks. He wouldn’t put up with it. He’d stop with (literally) “Whoa!”, and look around, as if to say to the others, “Did you hear what I heard?”, or “This changes everything.”
It sounds odd to say it this way, but to see that “Whoa!” look come over his face was a thing of beauty. It flooded the room, just like sunlight. And lifted everyone. He was absolutely uncompromising as a moral force. (“Virtue as an active force,” somebody said.) And his “Whoa!” is that same “Little Sensor inside of us” which, ironically, JT referred to on March 8. Gee & Smith don’t know how or when to say “Whoa!”, and they’ve lost their Little Sensors.
My old buddy should have been there with Gee & Smith on Jan. 13. No one said, “Whoa!” when they should have. Even though, I might suggest that everyone in the room knew that they had come to the point where they needed to say aloud, “This changes EVERYthing.” And it’s been downhill since for them both. (Tressel was already at the bottom of a very steep hill.) And they are emblematic of the rotten state of the NCAA and its’ big-time college athletics administration.
Let me go back to how fundamentally Gee & Smith veered off the tracks on Jan. 13. (Some of this has to fall in the lap of Chuck Smrt of “The Non-Compliance Group”, who apparently continues to be on the OSU retainer. Besides not having the presence of mind or moral force sufficient to say “Whoa” when shown the Bombshell emails, he apparently led Gee and Smith down a long path of wooden-headed blunders.) But it’s even more fundamental than that.
Let’s take the simple, garden-variety case of an employee who has been discovered to have concealed important information which substantially affects the medium-sized business you own (grosses, say, $30 million per year, and $15 million is government contracts.) Let’s say Chuck, your Head of Purchasing has been denying for a month some claim you got wind of back in December that Purchasing has been taking “kickbacks” [payments on the side] to purchase Vendor A’s product. And because your business does Government contracts, any claim of irregularity in your Purchasing has to be immediately reported to the Government. And let’s say that, when you reported the possibility of irregularity to the Government in December, the Government began investigating, and has an open file. Then in January, you go back and review all of Chuck’s emails, and you see one to Chuck, from Vendor B, which says that he has proof that Vendor 1 has been bribing people in your Purchasing Department.
Freeze-Frame: You call you HR advisor, who’s been doing this for years, and he says: Hey, this is cookbook stuff, it’s the same old problem, and he proceeds to tell you what to do; finally, you tell him — Hey, shoot me that list of “right-now” things do in an email, would you? And here’s what HR advisor says in the email (among other things):
1. Immediately suspend Chuck, with pay. You must get him out of the workplace. You’ve got a hint he’s committed fraud, you don’t know that yet, but – if he has been, then there’s a good chance he’s going to keep doing it – calling up people to tell them to shut up, erasing emails, removing files, whatever. GET THIS GUY OUT OF THE WORKPLACE, and forbid him from being on premises, or having any contact with any employees.
2. Because you do government contracts, immediately contact the government, to tell them that there is new evidence which is directly relevant to their investigation, and that you will immediately email them the email Chuck got, which contains that new evidence. If you don’t immediately contact them and give them the information clearly relevant to their open investigation, then the Government is going to assume that the reason for your delay in notifying them is that you want time to fraudulently conceal the facts (cover-up.) And, in fact, there isn’t any other good reason to delay reporting to them. You will be presumptively deemed party to the fraud, if one is found, if you don’t immediately report to the Government, and the Feds will come in and look at not only everything Chuck did, but also EVERYTHING YOU did, after you discovered the emails.
3. And beware that there is a strong possibility that the Governments may “lock you down” — the Government may want to come in and do the whole investigation themselves, with none of your employees, including you, having much to do with it. And this is because the Government knows that some kind of contracting fraud may so substantially jeopardize your entire business profits, and/or may involve numerous people at the business, that a fair “in-house” investigation cannot be done.
This is, as the guy said, “Cookbook” stuff. It’s not hard. And it’s common. So common that one can only conclude that what Gee & Smith did, and failed to do, as of Jan. 13 was not just a separate and distinct 10.1 Ethics Violation, but also incompetent, and — here’s that word — AMATEURISH.
On Jan. 13, JT wasn’t suspended with pay, or removed from the workplace. No report was made immediately to the NCAA, which had an ongoing investigation. The NCAA was deprived of any opportunity to do the investigation timely, or on its’ own. And understand the context here: what you see above, which is a script played out thousands of times per year in thousands of businesses, is the factual and strategic reality which is the reason for the existence of the NCAA’s Duty to Self Report Potential Violations.
A couple other factors needs to be recognized here. Read every document, and then you go back to mid-December, when the Feds sent the letter. JT NEVER SAW THIS LETTER COMING. JT is cool, deliberate, decisive, but he never planned for this. But then look what he does, because he views himself (probably accurately) as The Prince of Ohio. They come to him — Counsel Vannetta, AD Smith, Compliance Guy Archie, all of them, and they ask him whether he knew anything about the trinket/tattoo matter. And, remember, JT himself later described his earlier reaction to the April emails as having been “emblazoned on his mind.” But what does JT do in December?: He BULLSHITS them again. He lies, bold-faced, about a matter which we know was emblazoned on his mind. (And even texts Cicero on Dec. 24 — so he clearly recalls, then — but did he report to anyone then that he knew?)
And why does Tressel bullshit them all again? Because he thinks he CAN. He is the Prince of Ohio. It’s right in line what smart-guy Gee confessed at the March 8: “I’m worried that he [Tressel] might fire ME!” All of which prove that OSU has been, and still is, Lacking in Institutional Control. It’s a bedrock element of the entire framework.