The College Basketball Indictments: NCAA Doing ‘As Little as Possible’

In the movie Chinatown, Jake Gittis, private eye and former police detective in Chinatown, is in bed with Evelyn Mulwray, who asks him, “What did you do when you worked on the police force?” Gittis’ answer?

“As little as possible”.

In response to the recent college basketball indictments, Mark Emmert and the NCAA have done “as little as possible.” Sure, Emmert’s appointed a committee, with some big names which have generated flash. Sure, they’ve asked D-1 programs to ‘review’ their programs to insure compliance is up to speed. Otherwise the NCAA is doing a whole lot of looking the other way. A giant dodge.

On-the-plane, in-the-field, and on-site enforcement — just like 911

Ask Nerlens Noel, or Ryan Boatwright about the NCAA ‘looking the other way.’ Both basketball players were high school seniors over the past decade, who the NCAA somehow suspected were receiving some benefit which should disqualify them as ‘amateurs’. As a result, the NCAA sent investigators out in “the field”: home visits, lengthy interviews with all manner of characters, asking outrageous questions of unwitting relatives and friends – private citizens — all of them un-lawyered, and most of whom wrongly assumed that the NCAA was some kind of law enforcement, and all of them unaware that they should tell the NCAA gumshoe-bullies to go suck a lemon. This was NCAA robust, pulsating, on-the-plane, in-the-field, and on-site enforcement, with 911-like alacrity – to trammel-down those private-citizen 18 or 19-year-olds. Was the NCAA then doing ‘as little as possible’ to investigate alleged wrongdoing?

Or ask OSU’s former head coach Jim Tressel, who worked a fraud on the NCAA for almost a year, by disclaiming any knowledge of ‘eligibility-threatening’ trinket sales (horrors!) by his players.There had been much discussion, hand-wringing even, as OSU and the NCAA (and Tressel!) all seriously conferred about whether malefactors Terrelle Pryor and five teammate should be allowed to play in OSU’s January 2011 bowl game. (They were, though the players were required to serve a 5-game suspension the following season – and OSU immediately, in late December, filed an appeal of that decision.)

But when OSU found, ten days after that bowl game, a string of Tressel emails over the previous year, which strongly suggested that Tressel had been lying, the school forwarded those emails to the NCAA on the first Friday in February. What happened? The NCAA gumshoes were on-campus at OSU that Monday. The next business dayOn-the-plane, in-the-field, and on-site enforcement, just like 911.

Basically, Nuthin’

But when the feds announced in late September 2017 their indictments of four college coaches, some agents and financial ‘advisors,’ and a couple of Adidas ‘sales’ people, what did the NCAA do?

Basically, nuthin.

You would think that those same NCAA gumshoes who glommed all over Boatwright and Noel, or who jumped right on OSU and Tressel, would have been on-the-plane, in-the-field, and on-site at Auburn, USC, Oklahoma State, Arizona, and Louisville, with that good-ole NCAA alacrity.

Nope. NCAA, As Little As Possible.

Wait. But did someone claim it all has to be put on hold while a criminal investigation unfolds? Well, that can’t explain it. After all, when the NCAA swooped in on OSU in 2010 and 2011, there was a pending federal investigation. And civil and criminal – and yes, even NCAA – investigations can, and often are, concurrent, if only because the civil (and, presumably, NCAA) standard of proof – a preponderance – is so much easier to satisfy than the criminal ‘beyond a reasonable doubt’ standard. In addition, the NCAA loves intermediate remedies, imposed to preclude continuing harm or wrongdoing — just ask the two Auburn players who just got suspended using that very rationale.

Moreover, Louisville has had an appeal pending (just as OSU had an appeal pending) of the NCAA decision rendered in June 2017 – a decision which refused to apply the NCAA’s ‘vicarious liability’ standard to strictly impute the ‘stripper violations’ to head coach Rick Pitino, and also refused to find that Pitino’s claimed ignorance of the violations was not credible. The facts alleged in the September indictments (many of which are, on their face, highly reliable, since they derive from tapped conversations, or accounts from a ‘state’s evidence’ witness) provide a thumping suggestion that: 1) Pitino’s involvement in all the events was significant; 2) those events unfolded prior to the time the NCAA rendered its June 2017 Louisville decision; and 3) there are many more reasons to doubt Pitino’s  credibility — which was the central issue in the NCAA case decided in June! At a minimum, haven’t the new indictments generated sufficient new evidence suggesting that the NCAA must immediately re-open that case? Is it not time for the NCAA to get on-the-plane, in-the-field, and on-site, to Louisville?

An Immediate Baby-Step for NCAA Enforcement

Finally, let’s compare the ‘scorched earth’ NCAA investigations of Nerlens Noel and Ryan Boatright with the easy, simple, and cheap baby-step which Mark Emmert and his suddenly mute and paralyzed enforcement-goons could immediately take to minimally “investigate” some of the disturbing allegations in the indictments: require that every coach immediately file a signed affidavit which includes this statement:

By signing and dating this form, you certify that you have reported through the appropriate individuals on your campus to your chancellor/president any knowledge of violations of NCAA legislation involving your institution”

[This is the very language which Jim Tressel signed-onto in September 2010, which the NCAA later used to show that Tressel was “not credible” and had “purposely hid” evidence. It is Form 16-2 language, but the NCAA-Chinatown coaches and administrators acted on April 26, 2017 (six days after Rick Pitino testified before the NCAA) to eliminate Form 16-2, effective August 1, 2017. The coaches and administrators apparently wanted to do “as little as possible” with regard to reporting violations, within an NCAA system which touts its heavy reliance upon self-reporting.]

To mandate that every coach file such an affidavit by the end of today would impose almost no burden on anyone. It requires no commission, no meetings, no manpower, no outlay. No on-the-plane, in-the-field, on-site investigations. Simple. Pretty close to As Little As Possible.

Emmert won’t do it. Neither will the NCAA.

A Giant Step for University Presidents and Athletic Directors

It is the end of the movie Chinatown, after the wreckage of events results in the shooting death of Evelyn Mulwray, at the hand of a police detective. And PI Gittis, who unwittingly got drawn into events to try to save Evelyn and her daughter/sister, is heard to utter, almost inaudibly, “as little as possible.” To which the detective responds, “Forget about it, Jake. It’s Chinatown.”

This story about the new college basketball indictments, though, has a different coda. Mark Emmert and his NCAA will continue to do as little as possible, and will not re-impose the coach duty to sign Form 16-2.

But if you are a Power 5 university president or athletic director, justifiably worried a tad about some criminal (or NCAA violation) liability putting you in personal or professional jeopardy, you shouldn’t just forget about it.  Your ass is on the line.

 Here’s a suggestion: immediately demand that every basketball and football coach fill out a signed affidavit which includes the above Form 16-2 “any knowledge of violations’ language. (If he refuses, well, that tells you a whole lot, and is probably grounds for employment sanction.) It’s a tiny form, but a giant step. Make the coach commit. Don’t ‘forget about it.” Don’t do “as little as possible. Draw a line, which separates you from Chinatown, now. Get affidavits from every coach, because we’ve not seen the last of the indictments. 

About brewonsouthu

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