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NCAA – Due Process Letter

From the desk of
Joseph C. Shell, Jr.
December 28, 2010
Hon. Spencer Bachus
U.S. House of Representatives
2246 Rayburn Building
Washington, D.C. 20515
Dear Congressman Bachus,
At this time it would appear it is time to revisit the NCAA's testimony before Congress and your Committee, specifically the testimony regarding whether or not the NCAA affords those accused by the NCAA of wrongdoing, anything that resembles due process.
As the you will probably recall, the NCAA gave testimony, led by Professor Josephine (Jo) R. Potuto, that the NCAA not only afforded the accused due process, but the due process rights afforded the accused by the NCAA "very likely exceed any applicable 14th Amendment procedural protections."
Professor Potuto was not only testifying before your committee as a member of the NCAA Committee On Infractions (COI), but also as the Richard H. Larson Professor of Constitutional Law at the University of Nebraska (see Exhibit 1).
Professor Potuto lists as her areas of expertise:
- Federal Jurisdiction
- Sports Law
- Constitutional Law
- Criminal Procedure
- Conflict of Laws
- Appellate Advocacy
With such an extensive legal background, there should be no question that Professor Potuto would be completely aware of what comprises due process, and what actions by a prosecutor, or in this case the NCAA, would violate the due process rights of the accused.
Professor Potuto should also be aware of the consequences of giving false or misleading testimony to Congress. Roger Clemens is painfully aware of what happens when one is accused of giving such false or misleading testimony.
There is a significant difference between Clemens and Professor Potuto. Clemens was a baseball player. Professor Potuto is an expert in Sports Law, Constitutional Law and Criminal Procedure.
Which brings me to the point of this letter.
When Professor Potuto testified before your Committee regarding the due process afforded the accused by the NCAA, and testified that not only did the accused have due process rights, but those rights "would very likely exceed" any 14th Amendment due process standard, Professor Potuto should have known as a long standing Member of the NCAA COI, her statements weren't completely accurate. Professor Potuto has continued to participate in NCAA investigations subsequent to this testimony in her role as a key Member of the COI, where the rights of the accused not only weren't observed, in some cases they were trampled in the pursuit of an agenda driven outcome.
Professor Potuto made this representation regarding the NCAA's due process procedures in both her opening statement, and her written statement to the Committee.
Professor Potuto, in responding to your questioning regarding the right of the accused to confront witnesses at the "hearing," emphatically stated that an individual accused of a violation had the right to question any witness appearing at the "hearing."
The sleight of hand by Professor Potuto should not go unnoticed. As was pointed out by another witness at this same hearing (in his written statement), because most people with personal knowledge of the relevant facts are not permitted to attend, cross-examination of "witnesses" is not possible. Rules of evidence are not followed, and whatever the committee allows will be heard. In short, the proceeding is quite informal and haphazard by judicial standards.
When Professor Potuto gave you the impression that the right of the accused to confront the accuser was part of the By-laws, she carefully neglected to mention that she was only referring to the hearing itself, not interviews of witnesses done by the investigative staff behind closed doors. Witnesses who would not appear at the "hearing," misleading you.
Due process is only relevant when convenient to the NCAA's world.
Such was the case involving USC and the monumental sanctions brought against them after a five-year investigation. Professor Potuto is purported to be one of two Members of the COI who were driving the proverbial bus. Paul Dee, the chairman, is the other.
It should be noted the USC investigation commenced not that long after Professor Potuto testified before your Committee about the NCAA's exceptional due process protections afforded the accused.
In the case of USC, the Investigative Staff and the COI, when they couldn't find genuine evidence that USC had any knowledge of what Reggie Bush and his family were up to, it appears they began manufacturing "evidence" out of the thinnest or non-existent evidentiary threads.
And the victim of this manufactured "evidence", and what amounted to a kangaroo court (apologies to any kangaroos who take offense at being compared to the COI), was Todd McNair. An Assistant Coach who did nothing wrong, but who the NCAA investigative staff, Professor Potuto, Paul Dee and the COI, apparently were willing to destroy in order to be able to fulfill their agenda of seriously damaging USC.
The fact that Todd McNair was a model citizen, college graduate, and married with four children, was irrelevant in their obsessive drive to "get" USC.
I will not go through the laundry list of abuses that took place regarding Todd McNair, because attached to this letter are Todd McNair's Appeal of the NCAA Ruling (see Exhibit 2), and his Rebuttal to the NCAA's response to his Appeal (see Exhibit 3). They outline the deliberate pattern of abuse regarding Mr. McNair's rights, and the agenda driven trampling of anything remotely resembling due process.
I would strongly recommend that your staffs contact Todd McNair's attorney directly regarding any questions that might arise from reading these two briefs.
Your Committee should invite Professor Potuto and the other members of the COI and investigative staff to testify, under oath, again, and seek a clarification as to what Professor Potuto and the NCAA consider due process, and how their conduct in the USC/McNair case met or exceeded any due process standard.
The new President of the NCAA, Mark Emmert, and the new head of Enforcement, Julie Roe Lach, are saying all the right things about the importance of getting the facts right and transparency. They should be invited to testify before your Committee and explain why their public statements do not appear to reflect what happened in the USC investigation, and continues to this day.
Based on the way the NCAA is handling (railroading) the McNair Appeal, it would appear these statements are for public consumption with no substance behind them, because the NCAA continues to conduct business as usual. They do not believe they are accountable to anyone for their actions.
It may be time for Congress to address the failings of the NCAA regarding due process, among other issues. The United States Supreme Court has openly questioned how the NCAA qualifies as a tax-exempt organization. In these times of huge budget deficits, that would also seem to be ripe for review.
Joe Shell, Jr.
CC: Mark Emmert
Julie Roe Lach