Gee and Smith Deceit, and the New OSU Rule: Always Delay Reporting to the NCAA

On December 20, the NCAA Committee on Infractions blasted former OSU Head Coach Tressel for having been “not credible” and for “purposely hid[ing] information,” then slapped him with a five-year “show cause” order which probably renders him unemployable in the college ranks. But OSU President Gee and AD Smith remain, unsanctioned, in their lofty positions – even though a careful analysis of OSU’s own NCAA filings shows that Smith and Gee, unethically and in direct violation of NCAA Bylaws, hid information from the ongoing NCAA investigation for three critical weeks after the bombshell Tressel/Attorney Cicero emails came to light.

OSU asserted that on January 13, 2011 it first discovered the bombshell emails dating back to April 2010. But Gee and Smith’s first response was to then create a curious “Three Week Hole” [“TWH”] in the chronology – until February 4 – before they breathed a word of Tressel’s fraud to the NCAA.

So let’s do a Jan.13 Freeze-Frame to put this odd Three-Week-Hole in proper context, and to highlight the illegal scheming by Gee and Smith during this crucial time – scheming which likely unnecessarily alienated and infuriated NCAA decision-makers who had already been scorched by the public spotlight on their Sugar Bowl decision, and which has probably substantially diminished Gee and Smith’s credibility with the NCAA: 

a) Think back a minute, and recall all the hub-bub one year ago now about whether five OSU players (including Pryor) would be allowed to play in the upcoming January 4, 2011 Sugar Bowl. The NCAA’s much-ridiculed resolution allowed them to play, but required that the players then serve game-suspensions during the Fall 2011 Season. OSU’s appeal of that decision was pending at the time it discovered the bombshell emails.

b) OSU filed its’ original “Self-Report” to the NCAA on December 16, seven days after receiving the U.S. Attorney’s letter indicating that OSU trinkets had been seized from Tattoo-parlor owner Rife.

c) The bombshell Tressel emails (the entire body of which can be read and digested in less than five minutes) make plain to any bar-stool idiot that OSU’s December16 Self-Report contained fundamentally false assertions (based on Tressel’s repeated and intentional deceit and concealment) that no one in OSU administration or coaching had any prior knowledge of the Tattoo-related transactions.

So how, you ask, does this factual Freeze-Frame square with the text of NCAA By-Laws?

a) Because the OSU appeal was pending in January 2011, OSU had a duty toimmediately forward to the NCAA any newly-discovered facts materially relevant to that appeal. Lawyers have this notion pounded into them: one should never, for one minute, allow a fraud to be perpetrated on a adjudicatory tribunal (which is what the NCAA is) and, one must immediately correct any material factual misrepresentations or deceits previously submitted to that tribunal. (On January 13, the OSU In-House Attorney, for example, was probably jumping up and down, demanding that the bombshell emails be immediately forwarded to the NCAA. Gee and Smith, it would appear, ordered her to sit down and be quiet.) Whatever the case, it would be difficult to imagine anything more relevant to the appeal than those bombshell emails.

b) Upon reading those simple emails, OSU also had a duty to immediately file a new Self Report to the NCAA, based on its’ January 13 discovery of a new and distinct NCAA Bylaw 10.1 (“unethical conduct”) potential violation caused by Tressel’s lengthy fraud upon OSU and the NCAA. (Note: Gee and Smith can’t excuse the TWH by claiming they weren’t yet “certain” that a violation had occurred; the NCAA Bylaws make clear that the duty to report arises upon knowledge of a “potential” violation, so that certainty is not required.)

So, you ask, why didn’t Gee and Smith report the violation immediately on January 13? What could they possibly have been waiting for? 

Too hard? Too expensive? Nope. Immediate reporting required only a few mouse-clicks on the “Forward” button, which might’ve taken, perhaps, sixty seconds.

Didn’t know who to send it to? Nahh. There was, after all, an open, active and nationally very notorious appeal pending with the NCAA as of January 13 — on which, presumably, more than one NCAA staffer was probably very actively working.

Should we excuse the mysterious delay because Elwood Gee was on a Slow Boat to China?

Gee and Smith’s NCAA filing coyly intimated that the TWH was not generated to allow OSU to cover its’ tracks, but was necessary because President Gee was on some kind of a China tour. The implicit premise of this preposterous “Slow Boat to China” excuse is apparently either that: a) Gee was somehow “incommunicado” in the Orient during the entire TWH, and that the Self-Report had to wait until Gee returned, sufficient to inform and conduct with Gee what OSU calls in their filing “detailed discussions;” or b) the obvious Tressel fraud discovered on Jan.13 just wasn’t all that important.

Tressel’s fraud was important. Period. So we can reject that excuse. But the entire broader excuse is also nonsense. In fact, any sentient member of “Buckeye Nation” knows that Gee and Smith must have heard about these bombshell emails on the very day – January 13 – they were discovered. And Buckeye Nationals would also readily assume that Limousine Elwood Gee, whose material tastes have been known to run toward the lavish, would most likely have been ensconced – with his own international-call-equipped Blackberry — in a five-star, fax-and-email-fully-equipped Shanghai hotel, from which he could have easily conducted thorough and timely phone conference calls about the astonishing, just-discovered bombshell Tressel fraud.

In fact, Gee and Smith – after-the-fact, and probably in consultation with lawyers – apparently stooped to dreaming-up and then brazenly asserting in their formal NCAA filings this wild “Gee-out-of-contact” excuse because they had realized in a panic, by the time of the July 2011 filing, that someone might actually figure out the truth: that 22-day concealment of the bombshell emails constituted intentional and probably fraudulent withholding of highly relevant material, from a regulatory agency to whom they owed an ongoing duty of good faith and fair dealing, which information could have — and clearly should have, under any standard — been forwarded in five seconds to the NCAA staffer.

The point I’m leading to is that in this fairly well-defined context, there is strong suggestion that Gee and Smith made the joint decision in the several days after January 13 to join Tressel in continuing to conceal the Tressel-fraud emails from the NCAA – and that this concealment continued, for no good and legitimate purpose, for a total of three weeks.

So, you say, OK, fine, the three-week delay was inexcusable – but what’s the harm?  Well, first, it’s the Cold Case factor: evidence gets older. And it often gets older fast, because of the kind of rearguard, cover-your-bottom and cover-the-trail behaviors which are endemic within college athletic departments. The very kind of behaviors which the NCAA so severely condemned, for example, in its’ July 2011 Georgia Tech decision chastising the AD, Head Coach, and Compliance Officer for variously engaging in the “tainting”of witnesses, “hindering” of the investigation, and use of “pre-emptive contact” with witnesses.

You never know when or where these kinds of illicit behaviors will occur, but if you’re Smith or Gee in mid-January 2011, and you’ve just discovered astounding written, incontrovertible email evidence proving intentional Tressel fraud for nine months, then you have a reasonable basis to surmise that Tressel might also – if not immediately removed from access to all witnesses and documents – still be predisposed to engaging in additional illegal behaviors to further hide or shade evidence or testimony.

In fact, this risk of continuing internal cover-up is the very reason for the cardinal Employment-law practice – ignored by Gee and Smith but utilized by employers everywhere, from McDonald’s to Goldman Sachs — to immediately suspend with pay, and remove from the employment setting, the person who appears to have committed fraud or other wrongdoing, pending completion of the investigation in that person’s absence. The accused is removed quickly, but suffers no economic consequence. The fact that Gee and Smith ignored this cookbook, garden-variety practice implemented by any competent employment lawyer or advisor – combined with the existence of the TWH – raise some troubling questions about whether Gee and Smith were more committed to a plan which would protect their own jobs and “cover-the-trail” for OSU, than they were to getting at the unvarnished truth. In fact, by failing to immediately suspend Tressel, and by creating the TWH, Gee and Smith appeared to have set up a rather perfect environment within the OSU administration and athletic department for staging a three-week scurry to cover-up.

Here’s where the above leads us: Gee and Smith committed their own Bylaw 10.1 Ethics violation, independent of the many by Coach Tressel, by intentionally delaying the forwarding of the bombshell Tressel emails, and/or delaying in the filing of a new Self-Report of Tressel’s fraud. And no one will ever know the precise extent to which this separate and distinct ethical violation by Gee and Smith actually skewed and/or completely undermined the NCAA’s eventual investigation.

But, you say, the NCAA never made any public fuss or adverse finding about that TWH or about any unethical behavior by Gee or Smith – what’s up with that?

Here’s what, at least partially: this kind of delay “Hole” is not an uncommon phenomenon in NCAA practice. Though the Bylaws explicitly mandate immediatereport of a potential violation, the “wink-and-a-nod” ethic which pervades the member-run, old-boy NCAA enforcement arm means that, in practice, most NCAA enforcement staffers often apply the following much more lax “lots-of-wiggle-room” standard: don’t worry about a Self Report until after you’ve had time to determine that it’s more than likely that a violation occurred. This “in practice” standard bears little relation to the much stiffer mandate in the actual Bylaw, and the disparity between the two is a major (though hardly the only) reason why much NCAA process and adjudication has the air of a child’s puppet-show: appearance often wildly diverges from reality, and everyone gets a soft cushion or two to perch on – while the un-knowing audience applauds madly.

If your response now is, well, those bombshell emails are so crystal-clear in showing that Tressel fraudulently deceived everyone for months that even the NCAA’s loosy-goosy“in-practice” standard would’ve required immediate report by OSU, then you’re right. But then you’re also butting up against another hidden “wink-and-nod” presumption rampant in NCAA enforcement practice: AD’s and Head Coaches, those High Priests of the College Football Church, never lie, cheat or steal, or even once shade truth. This silly maxim protects bald liars. As an example, read the NCAA filings as regards the November 2010 NCAA Michigan case; Bill Martin engaged in a long and deliberate plan to bury NCAA violations, and Rich Rodriguez manufactured a litany of guffaw-generating schoolboy lies about how he “just didn’t know” the rules, yet the NCAA let them both off scot-free.

In fact, this “free-pass” for higher-ups is the presumed practice, absent special circumstances such as when, for example, the Federal Attorneys have already caught some fact witnesses red-handed (as happened at OSU), or the school’s higher-ups countermanded a specific oral prior instruction to keep confidential and not disclose investigation-related facts to others (as happened at Georgia Tech).

This is not to suggest that the Three Week Hole had no effect on the OSU end result; in fact, one can fairly surmise that in February 2011 the NCAA staffers were furious with OSU for the insulting delay. In fact, the NCAA investigators, upon being informed of the Tressel fraud on Feb. 4, apparently appeared on-site at OSU within two business days! And there are some subtle indications in the events after February 2011 that, despite Gene Smith’s folksy, marbles-in-mouth public statements apparently asserting that the raft of unfolding violations were all unrelated and “not evidence of any systemic problem,” the NCAA was fed up with his and Gee’s clueless and amoral scheming. Witness the early September 2011 statements by Smith assuring all that the players involved in the charity-event payout investigation would be cleared to play on an upcoming Saturday – when the NCAA very quickly called and informed Smith he was just plain wrong.

We’re left to guess whether Gee and Smith’s creation of the TWH, and the resulting perfect environment for cover-up, motivated the NCAA to impose stronger penalty on OSU — but that’s not the central point here.

Here’s the point, for All Compliance Officers, Athletic Directors and Head Coaches:

Any time you get a news of some potential violation of NCAA Bylaw, do not immediately report to the NCAA. Take your time. Utilize at least three weeks to do your own review/investigation. Take no notes which can be reviewed later. Talk with witnesses, even “pre-emptively.” (And the corollary to this rule? If you determine that it’s not more than likely that an NCAA Bylaw violation occurred, don’t even bother to report to the NCAA.) 

And what should make your jaw drop, after you’ve given this all some thought, is that you will realize that the above-stated rule is likely the very advice given to Gee and Smith by their lawyers, all of whom used to work for the NCAA. In effect, their lawyers told them: ignore the Bylaw, the NCAA always gives you big wiggle room to “arrange things.” The NCAA won’t enforce the “immediate report” requirement. Take your time. Let’s first interview all the witnesses ourselves, without the NCAA. Create the perfect environment to allow all to scurry to cover-up. Wait three weeks. No worries. And their lawyers were right.

A kid’s puppet-show. Cushions all around. 

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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