The NCAA Committee on Infractions committed serious misconduct and mischaracterized key facts in the USC infractions case, according to former running backs coach Todd McNair's appeal in the case.
The appeal, a copy of which was obtained by USCFootball.com, was submitted last Wednesday as the latest step in the nearly five year old case. McNair was found guilty of knowing about NCAA violations involving star athlete Reggie Bush and charged with unethical conduct for "providing false and misleading information" to investigators.
"We've made strong arguments in Todd's appeal that we believe will persuade the Infractions Appeals Committee to set aside Todd's unethical conduct finding," said McNair's lawyer, Scott Tompsett, when reached for comment. "We will now wait for the Committee on Infractions' response."
McNair is appealing the findings made against him and the show cause penalty prohibiting him from any recruiting activities. His contract was not renewed by USC at the end of June.
A source confirmed that USC is also appealing McNair's findings and penalties as part of its appeal. USC was charged with a lack of institutional control and, among the penalties imposed on the football program, was stripped of 30 scholarships over three years and hit with a two year bowl ban.
USC Senior Vice President for Administration Todd Dickey had no comment on behalf of the university. Although McNair's appeal is separate from the university's, many of the issues brought up in it could help USC's case.
The most serious charge leveled by McNair was of post-hearing misconduct by the NCAA. According to the appeal, the committee [COI] had ex parte communications with the enforcement staff by sharing a draft of the committee's infractions report in order to correct "factual errors." NCAA bylaws 32.8.8 and 188.8.131.52 prohibit such ex parte communication.
"That kind of communication is strictly forbidden," former committee chairman Tom Yeager said. "The committee has so many attorneys on it that would raise all kinds of red flags; they just wouldn't go down that way. In my years on the committee, the conversation with any NCAA (staff) is almost exclusively with the committee's own staff people. They just don't talk to the enforcement staff.
"What normally happens, is that the (enforcement) staff does not know the contents of the report. They just don't."
NCAA bylaws state that when the enforcement staff is contacted to assist the committee, all parties will be able to respond to the information. No such notification or response occurred in USC's case according to McNair's appeal.
"Have there been occasions when somebody on the enforcement staff will come in and catch something in the report when finished, something that might be misstated or a date wrong? Yes," said Yeager. "But it's basically correcting any factual issues that wouldn't change the committee's deliberations or their outcome."
The appeal states that McNair's attorney contacted the NCAA director of enforcement Ameen Najjar regarding the release of the committee's report. Najjar stated that committee had shared its report with the staff to "correct factual errors." The conversation took place almost a week before the final report was released.
"That would be longer than it's ever been," Yeager said. "Particularly in high profile cases, you keep the people that are touching it very close so you avoid leaks. That would seem to be longer than the norm."
By contacting the enforcement staff ex parte, McNair stated concern for not only the committee violating NCAA bylaws but also about what information was corrected:
"McNair believes there is a strong likelihood that the staff mischaracterized or misstated facts to the COI during the ex parte communications. At the hearing, USC's counsel and McNair's counsel had to correct incorrect factual representations that the staff made to the COI."
Several other excerpts from the appeal:
McNair states that the findings made against him were contrary to the evidence presented to the committee.
"Specifically, the COI changed and mischaracterized the testimony of Lloyd Lake, the sole source of the allegation against McNair, and then based its findings on the mischaracterized testimony."
The appeal alleges that the COI committed a procedural error.
"If the COI is going to denounce an individual's credibility in a public infractions report, it must find that the individual made statements that are unbelievable, inconceivable, unimaginable or unthinkable, not merely unlikely. The collective errors and mistakes with the credibility findings are so egregious, that they are both clearly contrary to the evidence and based on procedural error."
Also cited in the appeal is an USCFootball.com article, NCAA Missteps on McNair, which highlighted several errors by the committee based on USC's Response to Allegations and the unreleased Case Summary. The NCAA issued a statement the day after the story was published criticizing it and supporting COI procedures, which the appeal says is an example of prejudice.
"Because the NCAA has prejudged McNair's appeal, he has no meaningful option to appeal his finding and penalties. It is a forgone conclusion. The NCAA has nullified his right to appeal. The NCAA should vacate McNair's finding and penalties because in speaking out in support of the COI's decision, it has demonstrated bias and tainted the process."
The Infractions Appeals Committee can only overturn the COI based on four standards; the ruling was clearly contrary to the evidence, the individual or school did not actually break NCAA rules, there was a procedural error that caused the committee to find a violation of NCAA rules or the penalty was excessive and is an abuse of discretion.
The COI will submit a response to both McNair and USC's appeals within 30 days from receiving notice from the appeals committee.
Click here to read a full copy of McNair's appeal.
USCFootball.com will continue to update this developing story. Contact Bryan Fischer at firstname.lastname@example.org
You can follow Bryan Fischer on Twitter at @BryanDFischer