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December 16, 2010
NCAA ups ante against McNair on appeal
Fans of tough NCAA enforcement activity need not fear.
Just because Auburn's Cam Newton may have skated through to a Heisman Trophy and BCS championship game in record time does not mean the NCAA has gone soft.
Not as long as the organization has USC to kick around.
And not according to the NCAA Committee on Infractions' response to the appeal of Todd McNair.
The former USC football assistant says the Committee has made a flawed case far worse by bringing in, contrary to its own rules of procedure and evidence, new, mistaken, immaterial, irrelevant, contradictory and false allegations against him, even to the point of inventing quotes and making a first-ever "phantom finding."
A "fundamental violation of due process," is how McNair describes what the NCAA has done here.
The Infractions Committee's response "confirms that the findings against McNair are clearly contrary to the evidence," McNair and his attorney, Scott Tompsett of Kansas City, say in a November rebuttal to the Infractions Appeals Committee that was obtained by USCFootball.com.
Neither McNair nor his attorney was available to respond to the rebuttal document attached here in full: Rebuttal of Todd McNair.
But in the document, they say: "The only issue in McNair's appeal is whether McNair's unethical conduct findings were clearly contrary to the evidence," and nothing else. Their rebuttal says the record shows that is clearly the case.
McNair contends the Infractions Committee has doubled down on the mistakes documented in USCFootball.com's "NCAA Missteps on McNair" series of stories last summer.
And has done so in a number of ways.
According to McNair, the Committee has made both factual and procedural errors in the case, with a number newly raised on appeal.
Any one of these, the rebuttal argues, should be sufficient for the Infractions Appeals Committee, expected to rule next month in his case, to set aside what McNair says is a "career-ending" finding of "unethical conduct." After he was forbidden by the NCAA to do any recruiting for a year, McNair's contract was not renewed by USC this past summer.
For starters, the Committee's credibility determination on McNair was based on a "fundamentally flawed" analysis of the case, the rebuttal argues. It "erroneously" imputes to McNair as a "primary thrust" of his defense one that USC has adopted in its separate case. But it was not one that McNair has ever taken a position on, ever been asked about or would have any reason to know.
That follows an unprecedented finding against USC in which the NCAA has separated USC's appeal from that of its own assistant and said the University may not argue any part of the case with regard to McNair.
But curiously, in responding to McNair's appeal in October, the Infractions Committee found that McNair was not credible for a position that USC has taken in its case but one he's never taken: Whether it was reasonable to believe the Lloyd Lake-Reggie Bush partnership existed or that money changed hands between the two.
For USC, that's not exactly a hopeful sign for how the Committee will look at the University's appeal, but curious nonetheless.
The Committee also revealed in its response to McNair that, contrary to what it ruled in the June Infractions Report, it had found that McNair knew about improper benefits being given by Lake to Bush before the late-night Jan. 8, 2006 phone call from Lake to McNair that it depended on in the original case. It now says that McNair knew earlier because he saw "Lake get hotel rooms for xxxx's friends" and Lake said "he was told by xxxx that McNair knew about certain things . . . "
The problem here, McNair and his attorney contend, is that "These allegations were not alleged in the Notice of Allegations and, therefore, McNair never provided a defense to these vague, unsubstantiated allegations" in his appeal. And that all these months later, this is "the first time the COI [Committee on Infractions] informed McNair that it based its unethical finding on Lake's claims."
The Committee also apparently clings to conclusions based on contradictory findings against McNair despite having had those pointed out to it.
It still finds that McNair called Lake on Oct. 29, the night Bush was hosting top recruit Percy Harvin, because "McNair knew Lake and knew Lake was with xxxx that night." But then it also finds that McNair's friend, actor Faison Love, "introduced Lake to McNair later that night."
Both findings clearly cannot be true. McNair's rebuttal questions how the Infractions Committee could denounce his credibility "based on inconsistent and contradictory findings."
Then the Committee expanded and supplemented its rationale that McNair wasn't credible by bringing in claims for the first time, again not according to established NCAA procedures on appeal -- and something McNair was not allowed to do.
These credibility claims attacked McNair's testimony on Bush's internship with marketing agent Michael Ornstein, on Bush's 1996 Impala, on Bush's parents' house and their attendance at away games.
None of those had ever been raised in the Infractions Report concerning McNair nor were they "responsive to the errors McNair raised in his appeal [and] they have nothing to do with the allegations brought against McNair," the rebuttal argues. "It is impermissible for the [Infractions Committee] to use its response to expand and supplement its stated rationale for the finding on appeal."
But that's exactly what the Infractions Committee has done here in trying to respond to McNair's appeal.
The NCAA also fails to address the major issue McNair has appealed, that he'd been found guilty of unethical conduct based on false and factually incorrect statements in the NCAA's June 10 Infractions Report. Those factual problems were documented in USCFootball.com's stories: "NCAA Missteps on McNair."
Here's how the McNair rebuttal addresses that: "Perhaps most importantly, the COI did not rebut McNair's illustration that it based McNair's unethical conduct finding on factually incorrect statements," such as who made the infamous Jan. 8, 2006 Lake-McNair phone call and what was discussed.
When asked about that call, Lake falsely answered about how and why McNair would have called him, even though phone records show Lake made the call to McNair. But the clearly false answer did not damage Lake's credibility, the NCAA said. It excused Lake's faulty testimony on this most crucial single piece of evidence by saying he hadn't been properly prepared for an interview and it's "perfectly understandable" how he might not have recalled the exact details of a call 22 months after it occurred.
Here's McNair's take on that: "The COI is not supposed to take information presented to it and change it to make it credible and persuasive . . . Second, if Lake called McNair to ask him to intercede with Bush and get him to adhere to the agency agreement, it is very hard to believe that Lake would have forgotten that he initiated the call and not McNair. Calling an assistant coach and threatening to 'go public with the matter and implicate the institution' is not something any person forgets easily or quickly."
The Committee simply calls McNair's argument "bogus" here, but doesn't challenge McNair's point-by-point illustrations from the record showing the factually incorrect statements the NCAA based its credibility findings on.
"Any unethical conduct based on factually incorrect statements," McNair argues, "must be set aside . . . not only did the COI fail to refute the arguments in McNair's appeal, the response provided new and independent reasons to set aside the unethical conduct finding."
Instead of addressing the issues raised after the report was released in June, the Committee has chosen to add a series of what McNair's rebuttal describes as "nonresposive" and never-before presented charges and findings concerning McNair -- all contrary to NCAA rules governing infractions cases.
And it did so months after the final hearing and report was released. In doing so, McNair argues that the NCAA has violated its own standards for providing notice to an accused person of the exact charges to be answered.
Procedurally, the Committee shared a secret and possibly prejudicial ex parte communication of the final report draft to the enforcement staff a week in advance of its issuance in June, saying this was standard practice to correct factual errors. McNair contends that the Committee is not authorized to share its draft report ex parte with the enforcement staff.
The Committee has yet to inform McNair or his attorney what was communicated to the enforcement staff, or what changes if any were made in the report, why they were made and why they were not prejudicial to McNair.
Also prejudicial, McNair contends, was the public statement to ESPN from Stacey Osburn, the NCAA's associate director for public and media relations. Osborn endorsed the Committee's report on the day the first USCFootball.com story was released.
That was "even before McNair started working on his appeal," the rebuttal says and nowhere does the Committee explain who authorized Osburn, one of the few NCAA employees permitted to speak for the entire organization, to issue her statement. "The Committee trivialized the seriousness of the Osburn response," McNair says.
But in talking trivia, nothing beats what the Committee has done in making its additional findings that McNair wasn't credible in four areas never before raised and essentially immaterial to McNair's case: Bush's internship with Ornstein, Bush's 1996 Impala, Bush's parents' house and their attendance at away games.
The Committee includes these in a response called "Selective Memory" in a further attempt to damage McNair's credibility but one that instead damages its own, McNair argues. Here's just one example -- the 1996 Bush Impala.
Here's how the Committee describes what it feels is an "Ah ha moment" against the former USC assistant: "McNair's attempt to downplay the significance of xxxx's Impala speaks to his credibility, the Committee says. At the hearing, McNair suggested it was just an ordinary car that 'most people in my neighborhood could afford.' . . . The Impala was hardly your typical older model of car. It was featured on the cover of a car magazine . . . and xxxx subsequently sold the car to one of his New Orleans Saints' teammates for a reported $22,500 - $25,000."
We'll let McNair's rebuttal speak for itself: "First, xxxx's Impala has absolutely nothing to do with the errors McNair raised in his appeal. Thus, the COI's gratuitous discussion about the Impala is nonresponsive and should be stricken from the record. Second, there were never any allegations against McNair that involved the Impala. There was an allegation directed at USC that Lake gave xxxx's father money to purchase the car, but McNair was not named or referenced in the allegation, nor was he ever alleged to have known that Lake bought the car for xxxx. Third, the COI's rationale for McNair's unethical conduct finding says nothing about the COI basing its credibility determination on "McNair's attempt to downplay the significance of xxxx's Impala." This is either another example of the COI making a phantom finding against McNair in violation of NCAA enforcement procedures and fundamental principles of due process, or it is another example of the COI after the fact trying to expand and supplement its stated rationale for McNair's unethical conduct finding. Either way, it is unfair.
But that's not the end of it. It's also misleading and mistaken. How can the Committee criticize McNair for his "opinion" of Bush's Impala? He actually saw it, something no one on the Committee ever did. But they use McNair's opinion of a car he saw and knew about as a negative toward his credibility.
As to its being featured on the cover of a car magazine, that was only after Bush had declared himself eligible for the NFL draft, McNair points out, and after the magazine did "a complete overhaul [to] make it worthy of being in their magazine" -- and completely irrelevant to the infractions case.
So what the NCAA has said here is that it's not credible for McNair to have said that a car worth at most $25,000, even after it was overhauled, could be afforded by people in McNair's neighborhood.
So ingrained was the misguided mythology of the Bush Impala in the mind of the Infractions Committee, former USC head coach Pete Carroll had to interject himself at the end of his Tempe hearing testimony to correct a comment from COI member Missy Conboy, Notre Dame's deputy AD.
Carroll said this: "Okay I just wanted to say we left something out there, that Missy [Conboy] said that the car was a cool car. It was not. It was not a car that kids really cherished and all that. That is - anyway, the kind of car that everybody would covet. It was kind of 'Why would you get that one?' It was really more so. You kind of left it out there like it was a hot-shot car and it really wasn't."
McNair's rebuttal finishes off the Committee's car silliness with this comment: "The COI has wide latitude in making credibility determinations. But that latitude does not extend so far as to denounce a person's credibility for voicing his personal opinion about a 1996 Impala."
Dan Weber covers the Trojans program for USCFootball.com. You can reach him at firstname.lastname@example.org.