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June 27, 2010

Has NCAA prejudged McNair's appeal?

Let's just say it was surprising to get the word Friday.

"The NCAA answered our story," back-to-back voice mails informed me.

I'll admit I smiled when I learned that the same person I'd talked to earlier in the week from the NCAA, the person we'd quoted in our "NCAA Missteps on McNair" story saying the organization doesn't ever comment on specific cases, well, that same person, associate director of public and media relations Stacey Osburn, had just commented on a specific case -- the USC Infractions Case.

And to be honest, there was a certain sense of satisfaction in knowing that our story had obviously touched a nerve, had apparently pushed the NCAA in a way the organization isn't accustomed to being pushed and made it do something it really never does -- or isn't supposed to.

It came out in support of the Committee on Infractions decision.

But then we're not lawyers here. We're not representing USC assistant coach Todd McNair, even if we are trying to tell his story. McNair is the lone USC staffer singled out by the NCAA Committee on Infractions in its finding of a Lack of Institutional Control justifying the Draconian sanctions imposed on the USC football program.

And then Saturday, we heard from the man who is representing McNair, attorney Scott Tompsett of Kansas City. This was a day after Tompsett, who has spent 20 years defending coaches in 50 major infractions cases, filed the official notice to the NCAA that he planned to appeal McNair's unethical conduct finding and penalties.

Now what, he wondered.

"I'm surprised and disappointed that the NCAA would make a statement supporting the decision of the Committee on Infractions before Coach McNair has even had an opportunity to argue his appeal to the Infractions Appeals Committee," Tompsett told me. "The NCAA should reserve judgment and let the appeals process run its course."

Only the NCAA didn't. Osburn, representing "the NCAA," had spoken.

This wasn't former Miami AD Paul Dee, the chairman of the Infractions Committee and a man who knows an infraction when he sees one, speaking out to defend himself and his nine fellow Committee members. This was the NCAA.

"The NCAA will not comment on the content of confidential documents," Osburn said Friday. "However, it is important to note that the recent story from fan site USCFootball.com takes select pieces of information from comprehensive documents out of context, weaving them into an inaccurate depiction."

She continued: "When reaching a decision, the Committee on Infractions carefully considers the hearing discussions and reviews all documents from all parties in their entirety, not just excerpts taken out of their original context."

We'll pass on the ad hominem nature of her "fan site" characterization as the kind of thing you do when the facts aren't on your side. But we might caution the NCAA in any future statements defending this particular decision to stay away from the expressions "out of context," "an innacurate depiction" and "excerpts taken out of their original context."

Nor can we endorse the NCAA's apparently new standard of journalistic accuracy: Any story not incorporating the full 67 pages of the NCAA's public report is "weaving an inaccurate depiction."

But that wasn't Tompsett's issue. He was talking basic fair play for McNair. What if you're a member of the Appeals Committee reading that "the NCAA" -- the entire organization for whom Osburn is empowered to speak, not just the Committee on Infractions -- has endorsed the Infractions Committee's actions?

And if you read how the Committee "carefully considers . . . all documents from all parties in their entirety."

And if you weren't in that closed hearing Feb. 18-20 in Tempe, even if you reviewed every document other than the illegal tapes the Committee didn't listen to but said it used to corroborate the facts and endorse the credibility of its multiple felon accuser of McNair, then how dare you comment on this proceeding. Guess it's no surprise those hearings are closed to the media.

So now we have Tompsett, working on McNair's appeal, knowing that he's clearly fighting an uphill battle. The NCAA says it's allowing an appeals process to his client but it has already come down publicly on one side of that process. And it's not Todd McNair's side.

So if Tompsett had planned to include in his appeal that it was the Committee on Infractions "weaving an inaccurate depiction" by not "carefully considering" the "entirety" of "all documents from all parties," does he just send them a second letter now saying, "Never mind?"

Where do Tompsett, McNair and USC go to get a fair hearing now? Can they get a change of venue? Where to? Canada?

Or can they now get a new, unprejudiced judge or jury, considering how the NCAA's Friday statement endorsing the Infractions Committee's fair process would seem to have polluted forever the Appeals process for McNair and USC?

Is it all a charade? Has it been from the start? Is the decision on USC in? Has it been the whole time?

Imagine you've got a case before the U.S. Supreme Court and you plan to argue that the appellate court's decision unfairly weighted the evidence and incorrectly applied the law in your case.

But then a month or so before you're to get your day at the Supreme Court, the court's public relations person comes out and announces that, speaking on behalf of the entire U.S. government, the appellate court got it exactly right.

And anyone making an argument in your favor is wrong.

Now where do you go?

Where do Scott Tompsett, Todd McNair and USC go?

Now that "the NCAA" has spoken.

Dan Weber covers the Trojans program for USCFootball.com. You can reach him at weber@uscfootball.com.


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