NCAA Head Coaches and the “Personal Cell Phone Dodge”: Court Voids Butch Davis’ Dodge

The “Personal Cell Phone Dodge.” That’s the term North Carolina state court Judge Manning  just used to describe, with penetrating insight, the chicanery former UNC Head Football Coach Butch Davis used as an apparent attempt to avoid later “tracking” of his phone contacts and habits. (See “Judge allows access to business-related calls on Butch Davis’ cellphone“, by Dan Kane of the Raleigh News-Observer, August 10, 2012.)

“Dodges” are not uncommon in the coaching world. Nonetheless, the NCAA’s amateurish investigators and regulators make a habit of entirely ignoring most of them, consistent with their de facto rule of evidence investigation and interpretation:  “Head Coaches never lie, players do.” It’s only when some outside source – like the U.S. Attorney, for example, in the case of Ohio State and Jim Tressel, or Pennsylvania’s Attorney General, in the PSU/Sandusky scandal — rubs their nose in it.

And Head Coaches at big time college football and basketball programs all talk amongst themselves about the best dodges to utilize. In fact, the Top Two de facto rules of daily Head Coach conduct are:

1) Never use email. Don’t even have a university account; and 

2) As much as possible, do your “coaching” phone calls on a personal cell phone account.

Why are these two de facto practices accepted as gospel by the entire coaching profession? Because they stymie any effort on the part of anybody — whether in-house compliance, NCAA investigators, or NCAA Committees on Infraction –  to later track exactly what the coach did.

Look what happened to Jim Tressel. He violated Rule #1 — and that’s why he got caught in his nine-month long, tortured effort to defraud the NCAA and Ohio State. The email trail caught him. Or Joe Paterno, who allegedly “never used email”, but whose repeated and apparently assiduous efforts to bury and coverup the Sandusky predations were finally exposed by Louis Freeh’s discovery of emails recording those precise details — emails authored by AD Curley and VP Schultz. Somebody else’s email trail caught him. Email’s a dangerous thing, if you are a Big Time Head Coach.

It’s worth a stop here, to look more closely at the present milieu: the Federal Rules of Evidence impose on generally all business to preserve, not destroy, business-related emails — precisely because those emails have been recognized as so extremely helpful in any retrospective analysis of what happened and why.

But look at how Ohio State — knowing, I’m sure, that this federal state-of-the-art rule of  evidence preservation and use required not just preservation, but also the quick and thorough review of any such email trail — initially failed to investigate One would have assumed that when the U.S. Attorney notified OSU in early December 2010 that a number of OSU players had been patrons of a tattoo parlor which was the subject of federal drug investigations, and Tressel then denied, like a schoolkid, any knowledge, OSU would have immediately reviewed all Tressel’s emails. Pretty basic, right?

Well, no. OSU did not want to know.  Remember: Coaches Never Lie, Player’s Do.  So OSU held off on any (remarkably easy) review of Tressel’s emails, for a total of three weeks. Only after getting some collateral tip did they bother to “re-open” the case and initiate an email review — a review which was initially cursory and entirely incomplete. OSU — like the NCAA — had a practice of avoiding email and cell phone records, precisely because they just did not want to know.

But it’s de facto Coaches’ Rule #2 which triggered the North Carolina judge to poke Butch Davis. Davis apparently extensively utilized his own personal cell phone to conduct his daily coaching business, probably correctly understanding that the NCAA usually — as a part of it’s own complicity in applying that maxim that ‘Coaches Never Lie, Players Do’ — never shows any interest in getting at a Head Coaches’ personal cell phone records.

Michigan’s former coach Rich Rodriguez, for example, had a cell phone in his wife’s name — and not only did Michigan never review any cell phone records, neither did the NCAA — even though such a review probably would’ve exploded the many myths Rich Rod used as excuses for his “too-many-coaches, and too-much-practice” violations.  In fact, many coaches use a personal cell account, often registered in their wife’s name. It’s just a different, and more complicated, dodge.

So, as you might expect, it wasn’t the NCAA who pressed for Butch Davis’ personal phone records; it was left to the Raleigh News-Observer to make the request under state law. And the judge has just agreed — in blunt, unequivocal language — that Davis’ personal cell phone “dodge” will not hold up, and that billing records for that phone must be produced:

“(I) do not believe that our government officials, including University officials and coaches, are entitled to use the personal cellphone ‘dodge’ to evade the North Carolina Public Records law. If Chancellors of the UNC system are doing this thinking that they can avoid public scrutiny of their cellphone records by using their personal cellphones to conduct public business, they need to re-think their decision.”

Boom. Take note, all big time Head Coaches. Even if you throw the phone in the river, the billing records might haunt you. Not because the NCAA would ever press you on it. But some newspaper — and judge — just might.

About brewonsouthu

lawyer, with interest in college sports and NCAA oversight and decisions, and sports generally.
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