A few weeks ago, the NCAA unwillingly released a set of documents from its 2010 investigation of the University of Southern California. Those documents paint USC and one of its former employee’s, Todd McNair, in a less than flattering light. Since the release of those documents, many high level personnel from USC’s Athletic Department, the PAC-12, and athletic departments around the country have expressed concern that the NCAA Infraction Commission’s statements are evidence that the committee was out to get USC or at least was biased against USC. After reviewing the controversial statements made by those committee members and examining the NCAA by-laws, here is what I know: The NCAA, like it or not, didn’t do anything technically wrong. — In fact, those media reports calling for the damnation of the NCAA infraction committee make it very evident that the media, generally, doesn’t get the legal concepts involved.
A brief recap of McNair v. NCAA
Back in 2005, Reggie Bush, and O.J. Mayo thought it would be cool to take a few “gifts” from agents. When the NCAA caught wind of this, they launched a lengthy investigation into the University of Southern California over potential infractions to the NCAA rules governing “amateurism”. The investigation was conducted in accordance with the dreaded “Show Cause Order”. A Show Cause Order requires the member institution to prove affirmatively to the NCAA Infractions Committee (the people in charge of NCAA show cause hearings) that it did not violate the NCAA provision in question.
The NCAA Infraction Committee’s investigation found a “Lack of institutional control” at USC. Consequently, the NCAA issued USC some of the most severe penalties in the history of college athletics. USC Football running back coach Todd McNair was a collateral casualty of this USC investigation. The NCAA issued Todd McNair a “Show Cause Penalty” which prohibited McNair from contacting recruits for a year.
McNair, believing he was innocent and that the NCAA was out to get him, subsequently sued the NCAA for defamation. In February 2015, the 2nd Circuit District Court of California, against the strong protests of the NCAA, denied the NCAA’s motion to keep records of the investigation under seal, i.e. keep them in possession of the court and away from the glaring public eye. The NCAA, in compliance with the Court order, released the investigation’s documents into the public record.
If you don’t have anything nice to say, then say nothing at all
Turns out, those documents revealed that some of the staff members of the NCAA infraction committees said not so nice things about USC and McNair. Most of the committee member’s criticism of USC centered around USC’s hiring of Lane Kiffin, who is apparently the NCAA Infraction Committee’s arch nemesis.
One committee member, Rodney Uphoff, declared “Paul Dee was brought into Miami to clean up a program with serious problems. USC has responded to its problems by bringing in Lane Kiffin,”. Uphoff later wrote “They need a wake-up call that doing things the wrong way will have serious consequences.” and that USC “turned a blind eye to the problem and largely just hoped that nothing bad would happen. A failure to sanction USC both in basketball and football rewards USC for swimming with sharks.”
The Statements on McNair, however, are far more vicious. Shepard Cooper, who at the time was the director of the Infractions Committee, is quoted as saying “McNair shouldn’t be coaching at any level….He’s a lying, morally bankrupt criminal, in my view.” Another committee member in training, Robert Howard added, “McNair should have all inferences negatively inferred against him.”
The U.S. District Court of Public Opinion
Members of college athletic departments and the media as a whole have firmly condemned the aforementioned statements and process taken by the NCAA Committee on Infractions. Pat Haden, USC’s current Athletic Director, had this to say: “These recent documents confirm what we’ve believed all along, that we were treated unfairly in this investigation and its penalties. I think these documents are cause for concern about the NCAA’s own institutional controls. It should be concerning to all schools that the NCAA didn’t appear to follow its own rules.”
Those sentiments have been supported by both the Pac 12 and many other college athletic departments and directors around the country. Pat Haden pressed the issue of culpability even further by declaring, “It seems likely that there are additional documents that will come to light. Once USC has had the opportunity to review all of the documents unsealed by the court, we will determine what further action is appropriate.” Effectively, Haden issued a fairly unveiled threat of a potential lawsuit in the future.
Why the NCAA Bylaws make it ok for the Infraction Commission to both be biased and question the moral character of USC and Todd McNair
Despite the saber-rattling by Haden, the NCAA Infractions Committee actions were most likely okay under NCAA’s bylaws. USC and McNair’s attorneys’ main argument is that the NCAA violated its rules by allowing the outside influence of “non-voting” members on the “voting members” of the Infraction Committee. The crux of this argument lies with Shep Cooper’s statement in correspondence with fellow Infraction Committee staff member, Robert Uphoff, after the hearing, which she accused McNair of being morally bankrupt. Shep Cooper and Robert Uphoff acted as “liaisons” for the NCAA Infraction Committee, a role that is largely administrative. Thus, McNair’s attorney argues, they should not be allowed to provide commentary on the infraction case against McNair.
USC and McNair’s argument that the NCAA infraction committee violated its procedures is not persuasive in my opinion. After perusing the NCAA by-laws, I can’t find one rule that prohibits “outside influence” of “non-voting members” on “voting members of the Committee”. The only provision that comes close is 32.8.8, which mandates that after the hearing, the committee make determinations of facts and violations in private.
There are a lot of strong arguments that the NCAA has to get around the privacy provision of 32.8.8. The strongest argument by far is that the provision 32.8.8 does not make a distinction between “voting” and the “non-voting” member of the committee. The rule only speaks to the “Infractions Committee” as a whole, and thus, doesn’t expressly prohibit non-voting members from talking to voting members of the committee.
Another quirk is what Cooper, Uphoff, and Howard (who was not yet a full-fledged Committee member) are classified as. There is no definition for enforcement staff in the bylaws. It is unclear to me whether they fall under the “Enforcement Staff” classification or something different because they are quasi-members of the Committee. Moreover, bylaw 32.8.8.1 allows the Infractions Committee to “request additional information from any source . . .” but only requires all parties the opportunity to respond to the information if the information comes from “the institution, the enforcement staff or an involved individual . . .” So theoretically, if Cooper and Howard fall outside of those categories, then the Infractions Committee could contact them without providing notice to all the parties. (This is probably the result of poor drafting and not intentional)
USC and McNair’s secondary argument is that the NCAA’s Infractions Committee member’s statements are evidence of bias. The word “bias” appears in the NCAA by-laws three times. In all instances, it speaks to gender bias that doesn’t appear to be applicable in this case. There are two other relevant provisions to which a prohibition on “bias” could be inferred. NCAA bylaw 19.01.1, states
“The program is committed to the fairness of procedures and the timely and equitable resolution of infractions cases. The achievement of these objectives is essential to the conduct of a viable and effective enforcement program.”
Provision 19.0.1, however, is entitled “Mission of NCAA Enforcement Program”. These kinds of provisions are generally known as “aspirational” statements. Typically, the aspirational statements in legislation are not binding; rather, they are used to interpret the other provisions in the statute or in this case, bylaws.
The bylaws dealing with the Infraction Committee and the Enforcement Staff also prohibit either from having a “Conflict of Interest”. The relevant provisions, (bylaws 32.3.3 & 32.1.3) states, “Any Committee of Infractions / Enforcement staff member who has or had a personal relationship or institutional affiliation that reasonably would result in the appearance of prejudice should refrain from participating in any manner in the processing of the involved institution’s or individual’s infractions case.” A conflict of interest, however, is usually not the same thing as bias, legally speaking. Typically, a conflict of interest means that a person has a stake in the outcome of the case. Bias, on the other hand, more broadly means that the person is influenced by irrelevant outside factors in making a decision. Generally, logic doesn’t allow for one to use a more narrow prohibition to infer a prohibition on a broader action. Hence, even if USC and McNair could prove bias on the part of the committee members, I am not sure that anything in the bylaws expressly prohibits bias, as odd as that might sound.
McNair’s attorney is additionally suing under the theory that the statements were defamatory. McNair’s case for defamation, in my opinion, should get dismissed. The NCAA bylaws governing the conduct of individuals expressly allows for the Enforcement Staff and the NCAA Infractions Committee to examine the moral character of the athletic staff.
“Individuals employed by or associated with member institutions for the administration, the conduct or the coaching of intercollegiate athletics are, in the final analysis, teachers of young people. Their responsibility is an affirmative one, and they must do more than avoid improper conduct or questionable acts. Their moral values must be so certain and positive that those younger and more pliable will be influenced by a fine example. Much more is expected of them than of the less critically placed citizen.”
Hence, calling into question McNair’s moral values or lack thereof, doesn’t seem unreasonable. It would be hard to prove that the statements were made with malice if the bylaws themselves gave the Enforcement Committee and Infractions Committee the domain to examine and make determinations about McNair’s moral character.
Where do concerned Athletic Director’s go from here?
None of this means that how NCAA infraction Committee conducted its investigation of USC and Todd McNair was right in the more esoteric sense. There is a strong argument that the NCAA was biased or at least acting with a preformed intent to achieve a result. The more concerning issue for the Athletic Departments is that the NCAA Infraction Committee is not expressly prohibited from acting with bias. For that reason, Athletic Departments shouldn’t wait for the judicial system to solve this issue because the outcome might not be favorable. Rather, it is up to Athletic Directors to seek their own resolution of this conflict by amending the NCAA bylaws to expressly, and harshly, condemn bias.
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