Notre Dame’s Sham Investigation: They Hung Te’o Out to Dry, and Violated NCAA Bylaws by Not Reporting

The Jan. 20 South Bend Tribune article “Investigating the Truth: Notre Dame Officials Say They Knew the Truth on Jan.4” contains a number of new facts, presumably leaked by Notre Dame’s top brass -though the brass would allow only Spokesman Dennis Brown to be quoted. (I’m still going to defer final review of Monti Te’o’s role for now, since I believe more information will likely surface about the truth of his suspect assertion that he was a mere “victim”, and final evaluation of his role should be deferred.)

But this new information leaked by Notre Dame merely confirms my earlier impression that AD Swarbrick, after Te’o informed him of the hoax on Dec. 26, crafted a plan to thereafter schnooker the press and the public. (Recall that the eventual disclosure of the hoax came only when Deadspin — not Notre Dame – revealed it after three weeks.)

Notre Dame Top Brass Were Involved in Decision to Continue to Dupe the Public: What Sunday’s article also tells us for the first time, though, is that a group of Notre Dame “pros” – top Notre Dame brass, including President Jenkins, Swarbrick, and the Notre Dame attorney- engaged in planned behavior to not just bury the fact of the hoax as soon as they found out about it, but also to put in place a series of events — including AD Swarbrick’s press conference- which would fool the public into believing that Notre Dame actually thoroughly investigated – and actually wanted to “get to the bottom” of – the whole controversy.

In fact, the article provides a very solid basis for concluding that Notre Dame’s failure to deal truthfully and in good faith with the press, their fans and the some 80 million viewers of the ‘Bama/ND game is the result of decisions and conduct by a broader number of top ND administrators than just Swarbrick, and that those decisions and conduct were not only driven by a motive to deceive at some length, but also generated a thoroughly — and most likely, intentionally sham investigation which – by any fair objective analysis — comes nowhere close to satisfying Notre Dame’s strict duty, pursuant to NCAA Bylaws and criminal law mandates, but also according to principles of good faith and and common fair dealing. Here’s a list of what jumps out at us now :

1. The Decision-making process leading to Notre Dame’s continuing concealment of the hoax after Dec.26 appears to have included Notre Dame’s President: The sum of the evidence so far suggests that Notre Dame President Jenkins directed/participated in the decision to continue fooling the public about the hoax.

2. Swarbrick’s failure to disclose at his presser the information first revealed in this Jan.20 South Bend Tribune article is evidence that Swarbrick (and ND top brass) wished to continue to deceive their public.  It appears that none of the information revealed in this South Bend Tribune article has been newly-developed since the time of Swarbrick’s press conference, so that it could – and clearly should- have been earlier disclosed by Swarbrick.

3. One-day Investigation: Swarbrick created the original impression that much of the three week delay in informing the public was required by Notre Dame’s need to do a thorough investigation; in fact, Notre Dame, for no good reason, other than an apparent intent to foot-drag and conceal the hoax, inexplicably delayed even starting an “investigation” until Dec. 29. So the first three days of the cover-up appear to have occurred because Notre Dame just “sat on it.”

And the investigators returned with their report the next day (Dec.30.) So the investigation caused only a one-day delay.

[We’re also told that those same investigators popped up on Jan. 4 with a copy of some tweets – though it’s by no means clear that they were, in fact, “newly” discovered as of that date. Even assuming for a moment that they were “new”, the failure of the Investigator to produce them on Dec. 29 is – rather than good explanation for any ongoing delay – suggestion that the investigative firm was either not sufficiently competent to undertake and complete a timely review, or had been instructed not to. Those tweets reasonably could have, and should have, been discovered by a competent electronic forensics teams within 24 hours.]

4. Teeny-Tiny scope of Investigation — Surprising, if not staggering, is another nugget newly revealed in the Tribune article:

“The investigation ordered by Notre Dame was limited to the electronic search.”

This “investigation” touted by Swarbrick therefore involved zero interviews (either in person or on the phone) of witnesses, or review of documents, photos, videos, or any of the other common subjects of good-faith professional-quality investigations.

5. Very peculiar decision by Notre Dame top brass to severely limit the scope of investigation ordered on Dec. 29:  It appears that Notre Dame’s attorney, and President, were involved and “on the scene” immediately after Dec. 26, and I will fairly assume that a such a highly professional group was well aware that firms like the Kroll Group out of New York, or the Louis Freeh Group which performed the Penn State investigation, conduct the kind of competent, thorough (and often lightning-quick) investigation which Notre Dame apparently needed as of Dec. 26.

But the Notre Dame brass made a decision not to retain that kind of impeccable, thorough investigatory firm, and – incredibly – ordered up a one-day “electronic search.”  This odd decision is explained by only one conclusion: Jenkins and Swarbrick did not want to know the results of a competent, thorough and objective investigation.

Instead, Notre Dame ordered what can only be deemed a “fake” investigation. A sham. In fact, by Notre Dame’s own admission, it “did not examine cell phone records, e-mails or other electronic communication to determine the length or extent of Te’o’s communication with” the person called Lennay. And these so-called Investigators never even interviewed the primary and readily available first witness — Monti Te’o!

Jenkins and Swarbrick did not want to know.

More to the point, Jenkins and Swarbrick also did not want any of the rest of us to know. (“Us”, here, includes perhaps 100 million people.)  And there is a good basis here for concluding that this plan to continue to schnooker the public was one they thought might result in the entire hoax never being made public at all.

But Deadspin spoiled that plan, by disclosing the hoax.

But it’s Jenkins’ and Swarbrick’s apparent intentionally negligent handling of the criminal and other legal issues potentially raised which tells us how thorough was their plan to try fool the public.

But to schnooker not just the public. Because there are indications here they schnookered Te’o himself.  In a manner which bullied Te’o, and cut him adrift, and violated their duty to him, as follows:

It’s worth noting first the details of the post-Dec. 26 scene: Notre Dame “lawyered-up” immediately. There’s no indication anywhere that Notre Dame either advised Te’o to get an attorney – or offered to pay his attorney’s fees.

Then refer to this quote from spokesman Brown:

“we were utterly stunned to hear the news on the first day and had a difficult time getting our arms around it.”

But later in the article Brown then admits that they

“decided early on that it appeared no crime had been committed.”

Decided? Early on? When, exactly? — at the same time they “had a difficult time getting [their] arms around it?” Notre Dame can’t even get their own story straight.

They apparently “decided” that it appeared no crime had been committed after the Dec. 29 sham one-day investigation, so we know they had – at the time of their entirely premature “decision” — nothing other than some printouts of online information. In fact, according to what we know to date, Notre Dame still, on January 21, lacks commonly-utilized investigatory information sufficient to make any conclusions about the presence or absence of criminal or other legal liability.

But remember: Notre Dame did not want to know.

And Notre Dame led Te’o astray. Not only did they fail to ever instruct Te’o to retain an attorney (which should have the very first action taken by anyone at Notre Dame), but  Notre Dame apparently limited their advice for Te’o to an instruction to talk with his “agent” — later! (after the completion of the BCS championship game.) This is an agent retained to negotiate about a professional sports contract — not an attorney familiar with criminal or other legal liability issues.

And Notre Dame, after Dec. 26, manipulated and apparently ordered Monti Te’o to continue the coverup of the hoax, by instructing him as follows:

“Brown said Notre Dame administrators advised Te’o, if he faced media questions about his girlfriend’s death and the impact on him during the season, he should indicate that he wanted to keep his attention focused on the game.”

Apparently in some attempt to excuse their failure to protect Te’o, Notre Dame explains, through Brown that,

“… even if it [appeared a crime may have been involved]…we [Notre Dame] weren’t the victim. That was Manti, and we believed then and we believe now that it’s his and his family’s decision.”

First of all, one would suppose that this kind of thinking would’ve motivated Notre Dame top brass to immediately advise Te’o to retain a top-notch attorney. But the statement reflects, in addition the kind of tortured, nonsensical thinking which animated, apparently, much of Notre Dame’s decision-making on these topics. (By this logic, I would have no obligation, for example, to report to the authorities that a companion next to me has been shot and murdered in cold blood, because I was not the victim.)

In summary, then, Jenkins and Swarbrick effectiively gave Te’o this advice about protecting himself criminally:

“Hey, Pal, you’re on your own. And- about getting your own good criminal law advice? First -wait two weeks, ‘til after the Bama game – and, Second — just talk with your professional sports agent.”

At this juncture, these “gentlemen” – Swarbrick and Jenkins – are skewering Te’o to protect themselves. But it gets worse.

In light of some severe (and very legitimate) post-Swarbrick press conference criticism of Notre Dame for their coverup of the hoax for three weeks after Dec. 26, Notre Dame now boldly asserts:

“…university leaders decided it was up to Te’o to decide at what point he wanted to go public with the news that he had been the victim of an elaborate hoax, Brown said.”

This “blame the continuing coverup all on Te’o” statement is a “cover” for Notre Dame, and it’s own plan to bury the whole thing, and gamble that it would never come to light. In fact, in light of all the other evidence suggesting that Notre Dame top brass had designed a course meant to continue to fool the public, they were also most likely quite pleased that Te’o never publicly disclosed the hoax until Deadspin “blew Notre Dame’s cover.”‘

Notre Dame not only had no interest in determining whether a crime occurred – they also had no interest in providing Te’o with advice which would maximize his protection as he moved through these difficult circumstances. We call this “hanging Te’o out to dry.

Notre Dame owes its’ public (100 million people?) an accounting, including a release of the Investigation Report from the “electronic search” which it ordered (which appeared to have included only data which was publicly available on the internet anyway.) Even assuming such an accounting is forthcoming, one of the primary lessons to be drawn from this entire scenario is that AD Swarbrick and President Jenkins should no longer be assumed credible.

But one final issue looms here, as alluded to by this statement in the Tribune article:

University leaders initially were concerned that the hoax might involve NCAA violations, extortion, gambling or some effort toinfluence the outcome of the national championship game, Brown said. But the investigation revealed no such motives, he said.

Those “leaders” were correct to be “concerned.” But their sham, rinky-dink investigation did nothing to allay those concerns. It attempted to bury them. Fast.

We know now that Jenkins and Swarbrick: 1) early-on recognized the possibility that there resides, within the dark heart of this entire alleged Te’o “catfish” scheme, the possibility that one or more of the characters acted to extort others, and/or to affect the outcome of the national championship game upon which millions of gamblers lay down bets; 2) ordered a rinky-dink sham investigation which, on its’ face, fails any state-of-the-art standard; 3) Gave the appearance at a national press conference that a thorough, good-faith investigation had been conducted.

Painting that sham investigation as having been thorough and state-of-the-art deceived not just the ordinary (massive) football public. It also deceived the NCAA, and criminal authorities.

Te’o (and every other college player), received at the very beginning of every college football season some very stern instruction about the need to report any information which might in any wise involve any suggestion of gambling-related characters or activity. And that kind of instruction is repeated, ad nauseum, for each of these college athletes at almost every compliance session, and many other gatherings, they attend.

Presumably, the NCAA requires this kind of blunt (and repeated) instruction so that the school (and the NCAA) can immediately and thoroughly investigate — and report to authorities for further investigation – when the even the slightest whiff of gambling-related activity or taint might possibly be involved.

Notre Dame has admitted they had a “whiff” gambling or other criminal activity might possibly be involved. Notre Dame’s alleged “investigation” fails any reasonable state-of-the-art standard for investigating these kinds of topics.  And Notre Dame never made any report to anyone, when it should’ve made immediate report to the NCAA and appropriate criminal law authorities. Instead, they conducted a sham investigation, and apparently hoped the whole thing would just go away. And they hung Te’o out to dry along the way, by suggesting that he was the only one who had any duty to report.

To the parents of Lizzy Seeburg: Does this make you any more uncomfortable with the way that Notre Dame allegedly investigated — or didn’t investigate – the circumstances surrounding your daughter’s alleged assault at Notre Dame, by Notre Dame football players, before her suicide?

About brewonsouthu

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