NCAA ‘Code of Silence’? Emmert’s In on It

Mark Emmert is, to paraphrase Robert Penn Warren, full of more s___ than a Christmas turkey. He’s just told the Times’ estimable Marc Tracy (Amid Scandal, N.C.A.A. Forms Commission to Reform Men’s Basketball“) that the recent federal indictments of NCAA basketball figures, including some Adidas marketing executives, “seem to have uncovered a code of silence,” because, Emmert explained, people who were aware of things “weren’t coming forward.”


NCAA President Mark Emmert

Emmert needs to review his NCAA notes, to discover what I recently discovered. When I read the federal indictments, which suggested that Louisville coach Rick Pitino had, shortly before recruit Bowen ‘committed’ to Louisville, made phone calls in which Pitino directed or suggested that Adidas take steps to funnel money to Bowen’s family, I immediately recalled the NCAA Committee on Infraction’s 2011 decision, which explicitly found that Ohio State coach Jim Tressel was “not credible” and had purposefully “hid” information. (See post, “This Guy is a Hero? Tremblin’ Jimmy Tressel’s Deposition is Embarrassing.”)

At the time of these late-September indictments, Louisville had already been placed on probation by the COI (a decision which Louisville appealed), and the COI refused to find that Pitino, like Tressel, was “not credible,” or that he purposefully “hid” information. Pitino had claimed he knew nothing about the “stripper parties” which had taken place in the Louisville basketball dorm. And the COI refused to saddle Pitino with liability for the “improper” stripper benefits which his chief of basketball operations had aa!!arranged in the dorm for the players. The COI also refused to find that Pitino knew anything about those events, and sanctioned Louisville only for improper oversight of its program.

So when the new Adidas-Payola scandal broke, I immediately recalled that Jim Tressel had been hung high by his own signature on his statement — entered on the mandated NCAA Form 16-2 “Certification of Compliance for Staff Members of Athletics Departments,” which NCAA rules required that every coach annually sign by September 15 — showing his assertion that he was unaware of any NCAA violations.

Why did the COI in Jim Tressel’s case find this Form 16-2 so important? Ask Tim Nevius, at the time an NCAA enforcement staffer, who did a superb — and gentlemanly — job examining Tressel in his deposition. It was the foil against which every Tressel lie was measured, and Tressel could not weasel out of his lies, because his signature was at the bottom of Form 16-2. As every lawyer knows, any written statement is infinitely more valuable, and probative, than an oral statement, and there are thousands of witnesses who are daily cross-examined under oath, as Tressel was, about the truth of an earlier written statement. It is cross-examination gold. Call Tim Nevius, ask him. Nevius made a fool of Jim Tressel, who has no credibility left — because of Form 16-2.

So I intended to write a post, to suggest that Louisville should make sure that Pitino, before he left, signed his Form 16-2 on September 15. But then, out of an excess of caution, I checked the NCAA website — only to be astounded by what I found.

The only form I could find on the NCAA form website was a Form 16-2 (numerically changed to 17-2) which is now restricted to Division II and III. How could that be? I checked the bylaws. (See the page for 2017-18 D-1 forms, and note that there are no such Certificates. Then refer to the D-II 2017-18 form page, and note that the Certificate still must be completed by every D-II coach and assistant coach.)

Byylaw 18.4.2 (as it applied to D-1), before August 1, 2017, required that the school:

certify, through its president or chancellor on a form approved by the Council, the institution’s compliance with NCAA legislation. The certification of compliance shall be completed not later than September

Bylaw 18.4.2 (as it applies to D-1), after August 1, 2017, merely states:

Certify, through its president or chancellor, the institution’s compliance with NCAA legislation. The certification of compliance shall be completed not later than September 15

They removed, on August 1, the phrase “on a form approved by the Council”. This is extremely cute. The form is gone, for D-1. This is a Mafia ‘Code of Silence’ move. The NCAA acted, on April 26,  2017 — a mere six months ago — to remove the requirement that every coach in Division I sign the Form 16-2 which Jim Tressel had signed, to show that he knew of no violations. (Division II and III coaches still have to sign the form — here is that form, for 2017-18.)

This move was adopted on April 26, 2017 — two weeks AFTER the NCAA meeting adjourned, so that the group of attendees, in large part, did not know. And it didn’t take effect until August 1, 2017. And understand what these ‘Code of Silence’ NCAA Mafia types did: by deleting the requirement that Division I coaches fill it out, the NCAA gutted the entire self-reporting framework for Division I. And it’s not that this kind of self-reporting framework is unusual or at all burdensome: OSHA, for example, uses it. Many state OSHA offices tell employers: hey, we’ll leave you alone, but just file an annual report on our form, which updates us, and attests that you have thoroughly reviewed  and investigated, and that there are no violations.  We might come in and spot-check, on a random basis, one or two employers, to keep everyone honest — but basically, just file the form. Why does OSHA have that framework?: because it is the most efficient, and cheapest way of regulating.

But Mark Emmert’s NCAA now doesn’t work that way. Last April, some bright NCAA members got together and decided, not just to strengthen the NCAA D-1 ‘Code of Silence’, by eliminating Form 16-2: they gutted most of the entire self-reporting framework which the NCAA pretends is at its very foundation. And they did it in the dark of night, on April 26, two weeks after the meetings adjourned.

Division I coaches do not want to annually attest that the programs they run are clean. They want to be silent. And the NCAA just, six months ago, agreed: Division I no longer has to attest that they are clean. “People,” to use Mark Emmert’s words are “not coming forward,” because the NCAA took steps only months ago to tell them that there is no need to “come forward.” The Division I coaches want to insure that cheating will go unreported — all the while maintaining the appearance that they are running a clean ‘self-reporting’ system. The self-reporting at Division 1 is a sham.

And do you know who is elated by this Mafia move, made effective by the NCAA on August 1, 2017?: Rick Pitino. Look what’s happened, for example, to the federal investigation since it was originally announced: the feds have subpoenaed from Oklahoma State any documents which show what was reported for violations by coaches or assistant coaches. The feds are looking copies of the annual Form 16-2 filed by coaches at OSU.  Starting in 2017, though: there are no such forms.

Mark Emmert is a Mafia Don, spinning events to make it appear as though some strange ‘Code of Silence’ has grown up in his outfit, and that he needs some bigwigs like Condi Rice to rout out that alleged Code of Silence. But Emmert has not been honest with those who he has appointed to his committee. Mark Emmert is full of more s___ than a Christmas turkey.

My challenge to Condoleeza Rice, J. Thompson Jr., Grant Hill, David Robinson, Jeremy Foley: Did Mark Emmert tell you what happened on August 1, 2017, only six weeks before the federal indictments, and only 60 days before your appointment? Did he tell you that his own outfit had quietly gutted its “self-reporting” system, in order to infinitely reinforce the NCAA Division I ‘Code of Silence”?

Why did the NCAA act six months ago, to quickly get rid of Form 16-2 — a form which had been central to catching Jim Tressel’s remarkable long-running deceptions, and which served as the primary bulwark against ‘cheating’ which coaches — like Pitino — are all too prone to engage in? In reality, don Mark Emmert loves his newly fortified Code of Silence.

Condi: what will you do? Your strongest move would be to tell Emmert that you have no intention of wasting your time on this committee, until the NCAA acts to reverse the ‘Code of Silence’ amendment which was made effective on August 1, 2017. Tell them to reinstate Form 16-2, and that you are unwilling to serve until they do. And Condi: the NCAA dons do not want anyone “coming forward.”





About brewonsouthu

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