How the Sloppy NCAA Investigatory/Adjudicative framework is rigged in favor of Coaches and ADs. The NCAA is Composed of Gentlemen, and the NCAA Must Use Gentlemanly Language in Its Decisions, at All Times. Gentlemen Do Not Call Each Other Liars. Oh – and – Players are Not Gentlemen.
Well, we’ve seen some earnest press releases from the NCAA Prez Pow-Wow in Indianapolis last week, and – like most things NCAA – not much of it makes sense, and most of it can’t be believed.
What can be believed is that these people will muck it up further, and also miss the boat. No, I’m wrong. You have to keep reminding yourself. These are not people committed to reason and fairness. All this mess, this appearance of incompetence, the hierarchy and investigation/enforcement process which looks like some high school Mock Trial process — it works for them. The public actually thinks that these investigations are legitimate, and they believe that it’s a lot like the real world. (They’re not, and it’s not.) These are people who run a cartel, which controls an Entertainment Market. A market which helps many of these NCAA-types – not just “Million-dollar Mark” [Emmert], but all these athletics administrators, coaches, staffers – pay their mortgage. Big, even huge mortgages they have — some of them, much bigger than they thought they’d ever have, because of the explosion of cash available to these members of the Athletics-Entertainment complexes which we call university “Athletics Depts.” And they are all desperate to maintain this elegant little monopoly they run where their primary income-producers work for free.
The NCAA claims to be an “amateur” organization. As regards the NCAA Investigatory/Adjudicatory structure and function is, I’ll agree, completely: it is thoroughly amateurish. A joke. Murky rules. Countenances all manner of duplicitous shenanigans, lies by its members, even in writing. Ignores the administrative law basics of reviewing and deciding on any claim. There’s a broader point, which I’ll get to later, but here I’m just going to concentrate on one such particularly noxious defect in the NCAA’s regulatory/investigatory/adjudicative system, and how this defect is a window into understanding that the system functions (dysfunctions) this way to help maintain the current (skewed) NCAA economic status quo.
GEORGIA TECH/NCAA EXAMPLE
First, I’ll quote from the NCAA’s July 14 Georgia Tech decision. You don’t need to know the facts. Just look at these “findings” within the NCAA’s decision.
Ga. Tech (1) “The committee was concerned with the former general counsel’s approach to the NCAA’s investigation.” ….In the committee’s view, the former general counsel’s behavior in this case was a disservice to the institution.”
Ga. Tech (2) “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] as an institutional directive from the enforcement staff.
CONTRAST THE ABOVE WITH:
Ga. Tech (3) (From the same NCAA Ga. Tech decision): The Committee on Enforcement found that the Student-Athlete’s “first” version of events (from his first interview) was the “truthful version,” (as opposed to some conflicting things he said in a second interview) even though it was a “close call,” and there was no written or other documentary evidence on the issue.
This contrast is very revealing, and here’s why:
a) The first two examples above are conclusions about the conduct and testimony of the GT Head Coach, AD, Compliance Head, and General Counsel. The third example concerns a “Student-Athlete.”
b) The analysis in #3 is just the kind of weighing of specific conflicting evidence which is a part of an administrative law good faith effort to “find the facts.” And it involves reaching a conclusion that the “Student-Athlete” told the truth during the first interview, and did not tell the truth in the second;
c) Note the aversion in the first two, however (concerning GT management) to making any adverse conclusion about the motive or action of any GT manager, using High School Social Worker words like “concerned with”….disservice to the institution… poor decision.” Nothing about concluding that one or the other “told the truth” in one setting, or didn’t, in another, based upon some good faith “weighing of the evidence.”
d) There’s an irony which illustrates an NCAA adjudication-playing field badly tilted in favor of Coaches and ADs, and against players: the truthful and untruthful versions of events described by the Player in his two interviews appear to have been the result of unfair pressure by GT management! The Head Coach, AD, and Compliance Head met with the player before Interview Two (despite the explicit phone call instruction from the NCAA staffer NOT to relay the information gleaned by the NCAA about some agent involved with illegally providing clothing to the player), and, by all appearances, pressured him to change his story! To lie! And, if you believe the NCAA findings, he did lie! The Coach, AD and Compliance Head were involved in what is called “subornation of perjury.” And it wasn’t merely garden-variety subornation of perjury: this was in a setting where the GT Team was in a position of relative power over the Player, so that the subornation had a strong whiff of coercion. In terms of culpability here, who has the greatest fault? Who’s done the larger wrong? Those adults who abused their authority, created the false impression for this young (black, and poor) “Student-Athlete” that “shading” testimony is not only normal, but expected, and also, possibly, necessary to get playing time?
But what do you get from the NCAA? First, a finding about the “truthfulness” of the statements made by the Player, in a situation in which it was a “close call.” But that’s OK — that what administrative tribunals are supposed to do: make findings which are 51% – i.e., more probable than not. Then some vague, softball language about the “tainting” effect, and “hindering” effect of the “pre-emptive” interview of the player. Hindering? Tainting? In ordinary circumstances, the fact-finder would make a specific finding that, more probably than not, the participants in the room pressured the Player to lie. But these are not ordinary circumstances, because no NCAA decision EVER casts doubt on the truthfulness or motive of anything uttered by a Coach or AD, unless the evidence shows CERTAINTY.
So here’s the wretched result: the NCAA finds the Player didn’t tell the truth, but fails to make any similarly negative finding about the motives of the “managers” in the room, and fails to sanction the “tainters” (Coach, AD, and Compliance) who met with the Player apparently to get him to change his story by lying. The NCAA imposed sanctions on GT, yes, but the AD has a Press Conference afterwards to complain about the decision, insist he did nothing wrong, and basically thumb his nose at the NCAA? How can the NCAA let this AD continue to function in that position, when the facts suggest he coerced subornation of perjury by one of his “wards” — a “Student-Athlete?
What you see from these Ga Tech examples is a hint of a broader, recurring phenomenon: Universities (in their submissions to the NCAA), and the NCAA itself, are willing to quickly make adverse findings about the credibility and conduct of “Student-Athletes. In contrast, both will do everything they possibly can to avoid any kind of not just adverse, but even mildly pejorative judgment about the statements or conduct of the schools’ “upper management.” It’s the purest form of an “old-boy” network, and this avoidance-pattern is evident in almost every NCAA decision. And the “bon-bon” language used is always similar. NCAA COI decisions are packed with little cupcake terms meant to oh-so-tenderly evaluate the questionable actions of Presidents, ADs, Coaches, and Compliance Guys: terms like “disappointed”…. “concerned”…. “poor decisions.” NEVER MAKE A FINDING THAT A COACH OR AD IS NOT CREDIBLE.”
MICHIGAN/NCAA EXAMPLE: Let’s look at some similar illustrations from the October 2010 NCAA Decision on the Univ. of Michigan charges:
Michigan (1) “The committee was particularly concerned that, even after the head football coach and his staff were specifically educated on multiple occasions regarding the rules that were eventually violated, the violations continued.”
Michigan (2): “The committee was concerned that the institution’s compliance staff advised the football staff via a memorandum in both March ‘08 and March ‘09 that such activities [Strength and Conditioning Staff’s illegal disciplinary/punishment “exercises] were impermissible, yet the S&C staff conducted them anyway.”
Michigan (3): “In fact, as earlier noted, the compliance office specially educated the football staff that QC personnel could not conduct any on-or-off field practice activities.”
Michigan (4): “Finally, the former Director of Athletics ….and the senior director of athletics failed to require the football staff to submit the forms as required. This collective failure partly resulted in the violations outlined [above.]”
What do these examples from the Michigan decision tell you? Once again, the NCAA’s unspoken cardinal rule is to assiduously avoid making any adverse judgment about the statements, actions or motives of any of the Athletics Department upper management. More cupcake language here: “particularly concerned”…. “concerned.”
But look at the substance of the statements: the first three couldn’t be much more specific in finding that the education about the rules, provided by UM Compliance, was perfect. One would think that this then mandates that the NCAA find that the violations were “knowing” on the part of the Head and Assistant Coaches – and, in turn, find that the Head and Asst. Coaches were not credible when they claimed they “didn’t know the rules” against making any advance. But no, this would violate that unspoken rule: NEVER MAKE A FINDING THAT A COACH IS NOT CREDIBLE; AND AVOID, AT ALL COSTS, MAKING A FINDING THAT WHAT HE DID WAS “KNOWING” or “INTENTIONAL.”
OSU/NCAA EXAMPLES: Now let’s look at some OSU examples:
OSU (1): In the OSU/NCAA Enforcement Staff’s July21 Case summary, the Staff states: [About an OSU Player]: “The staff notes that[Student Athlete] provided several statements against his own interest regarding his involvement in violations that otherwise may not have been detected. Thus, the staff believed that [his] statements were credible enough to partially rely on in determining the value of the benefits he received, particularly in the absence of any other information.”
OSU (2): On the very same page as Example 1 in the preceding paragraph, when looking to define the timing of receipt of “preferential treatment” by a Student-Athlete, from Tattoo Parlor Owner Rife (since Rife is deemed an OSU “institutional representative” as soons as JT found out about him on April 2), the NCAA states that they are “unable to make that determination with certainty.”
What these OSU examples show is:
1) The NCAA, in Example 1 above, shows an appropriate weighing of a conflict in the evidence, leading to an estimation, more probably than not, that the Player was telling the truth (“credible enough” are the operative words.); and
2) In contrast, as regards an issue which has mammoth import in weighing actions by JT and OSU (since a finding of receipt of benefit from Rife by the Player after April 2 would be a foundation for a finding of lack of institutional control), the NCAA uses a “certainty” standard – which is the highest, least common, and toughest to satisfy.
Get it?: You’re the NCAA (or you’re Gee & Smith, finding the facts from your million-dollar investigation.) Here’s the “Tilted-Playing Field”, “Old-Boy Network” Rule, applied in almost all cases. (And remember, we’re talking about the Committee on Enforcement):
— You want to make a finding about a Player? — just ask yourself: was it “more probable than not?”
–You want to make a finding about the Employer/Manager/Coach/AD?: You have to have proof of CERTAINTY. ?
The underlying corollaries are: The NCAA is Composed of Gentlemen, and Must Use Gentlemanly Language at All Times. Gentlemen Do Not Call Each Other Liars. Oh – and – Players are Not Gentlemen. The NCAA implicitly directs that one must assiduously avoid making any such credibility, motive or “knowing” conclusions about actions or statements by a Coach or AD.
The result is that Coaches and AD’s know that they’ll get an automatic pass: the NCAA will only make an adverse judgment about a Coach or AD’s credibility when the NCAA has “certainty”, i.e., have explicit, written or photographic evidence. (Example: Bruce Pearl got caught because they had a photo of the recruits in his back yard; Kelvin Sampson, because there were thousands of text messages.) And where do Coaches get this advice, so they know about that the game is rigged in their favor? From guys like Gene Marsh. The Compliance Group. All these guys who used to work for the NCAA. They know – and pass on to their clients, for $250 an hour – this dirty little secret that the NCAA will accept with a straight face a passel of outlandish claims, so that Coaches just have to claim they didn’t know — and that the NCAA Enforcement guys will buy it — and also get all twisted up and diverted, when they come to investigate, on that tired, irrelevant red herring: what compliance education was provided to the Coach!.
Look again at the Michigan case. (Jim Tressel just followed Rich Rod’s lead.) RR’s testimony and excuses that he didn’t know were — to an ordinary reasonable person – “rolling on the floor laughing” excuses. And the NCAA found that Compliance training was perfect. But then they stopped, like a semi screeching to a halt, in the middle of the highway, and tip-toed away, remembering: NEVER MAKE A FINDING THAT A COACH WAS NOT CREDIBLE.
These guys like Marsh get hired by Jim Tressel, for the big bucks. Just like the Sec & Exchange Comm. litigation, which everyone now knows is a pumpkin-ball affair — and that their “enforcers” quickly jump to “the other side” to make the big bucks defending the same characters they used to investigate. And they carry with them, when guys like Marsh go to represent Tressel, this Big Secret: “The NCAA will entertain just about any claim that a coach “just didn’t know.” And after a meeting with guys like Marsh, a guy like Tressel has a beer with his closest, best friend (just as Rich Rod probably did), and telsl the best friend, “You can’t f—–n’ believe it, I can just keep saying “I didn’t know”, over and over, and the NCAA will buy it!
In contrast, take the poor black kid, from either GT or OSU (who has no lawyer, even though his poorly-lit trail to an athletic future is squarely jeopardized by anything that this crew of silk-tie guys do in meetings with him — when every school ought to pay for a lawyer for every kid sitting on those hot seats.) The NCAA is more than ready to jump right in and make the easy quick estimation as to whether it’s “More probable than not” that he was telling the truth.
Summary of the NCAA Practice: for Players, make the common rational conclusions based upon weighing of all circumstantial evidence. For AD’s and Coaches, circumstantial evidence will never be the basis for findings about their credibility, motive, level of knowledge, or intent. You need certainty.
So we’ve shown that the system, as regards this unspoken rule, is amateurish. But it’s amateurish to protect the financial status, and professional status, of all those members of the Coaching and AD community (not the players) – and to resist any damage to the mammoth money flow which is now drowning college basketball and football.
But HOW IS THIS RELEVANT TO TRESSEL AND OSU? This unspoken cardinal rule is very important, because implicit in this framework is that commonly-accepted methods of evaluating evidence can be ignored when evaluating a Head Coach’s story. Like these:
1. If a witness is shown to have materially lied once, then a reasonable person is allowed to make negative inferences in assessing all his subsequent/other statements and actions.
2. Similarly, if a witness is shown to have materially lied numerous times, there are stronger reasons to be skeptical about anything he says.
3. If a witness is shown to have materially lied numerous times, and he has acted as your agent for many years, then all his actions and statements are subject to review for accuracy and compliance — and any repeated, in depth pattern of lying or subverting the system over a number of years will subject the school to a higher level of scrutiny to determine if that institution failed to reasonably oversee the actions of the cheating underling/coach.
Tressel lied, withheld, made false statements, and (at least after Dec. 16) fraudulently concealed material information. But Gee and Smith earnestly claim only that they are “embarrassed” by what JT has done. Huh? “Disappointed.” What? In an ordinary circumstance, JT’s lies, withholding, false statements, and intentional plan to deceive would allow the NCAA to make the next logical — and necessary step: conclude that the past ten years of OSU compliance performance are now entirely suspect, because the Prince of Ohio, who ran the University, has no clothes. And the NCAA would demand that every compliance action taken during Tressel’s long tenure be reviewed. And subject OSU to a finding of Lack of Institutional Control.
But remember, the NCAA should avoid at all costs making any adverse determinations about the credibility, motive, intent, or knowledge of a Coach or AD.