In its December Response to the charges from the NCAA Committee on Infractions, USC noted a number of mistakes and factual errors in the evidence presented against assistant coach Todd McNair.
Those errors were also detailed at the Committee's Feb. 18-20 hearing in Tempe, Ariz., according to a source familiar with the case but not authorized to speak publicly about it.
USCFootball.com reviewed a copy of the Case Summary detailing evidence in the NCAA Committee on Infractions Case No. M295 against McNair supports the USC claim of factual errors, misleading questions and uncorroborated evidence used by the organization's enforcement staff.
The testimony in question involves would-be sports marketer Lloyd Lake and whether McNair knew or should have known of a scheme to provide impermissible benefits to former USC running back Reggie Bush and his family.
The Case Summary is "what the institution believes, what the individuals in the case believe and what the enforcement staff believes," NCAA associate director of public and media relations Stacey Osburn said in commenting about infractions cases in general. No NCAA staffer may talk about a specific case, Osburn said, after the press conference conducted by the Committee chair on the report's release.
The Case Summary documented the allegations against McNair. Each had factual problems.
In questioning Lake, the enforcement staff misstated who made a 2-minute, 32-second phone call that the Committee said it relied on as proof McNair was told of the scheme. In questioning McNair, the staff incorrectly stated the year the phone call was made as happening in 2005. In all five mentions of the year in the questioning session, the phone call is said to have happened in January of 2005, not 2006, when it actually occurred.
"If this (mistake) did occur, then I couldn't imagine they would not be jumping out of their seats about it," said Tom Yeager, former Committee Chairman and Commissioner of the Colonial Athletic Association. "If it's as clear as they're trying to say, then there isn't even a finding to be made against the client.
"The committee would have turned to the enforcement staff for an explanation. If they're making a finding on a call that didn't even occur, that's strange credibility. I can't see all eight of those guys missing that."
Michael Buckner, whose Florida law firm represented Alabama State in the only appeals case that has reduced an NCAA penalty under the new, much stricter standard adopted in January, 2008, was not surprised by discrepancies in the allegations.
"That's not unusual," Buckner said. "They do make mistakes."
The enforcement staff alleged that McNair had knowledge of impermissible activities when told of them by Bush and Lake at a San Diego hotel, March 4, 2005, a day when McNair was not in San Diego. Lake claims to have met McNair that "weekend" at a Marshall Faulk birthday party for 2,000 people. McNair didn't arrive in San Diego until Saturday, March 5, as phone records and two witnesses indicated. No witnesses corroborated Lake's account.
The inconsistencies in this allegation led to this statement in the NCAA June, 10 Infractions Report.
"The committee concludes that the evidence presented contained unresolved discrepancies in what witnesses reported regarding the events and who was present during the March 2005 birthday party weekend."
In three one-minute phone calls to a 619 (San Diego) area code number, the enforcement staff claimed McNair called Lake on the night of Oct. 29, 2005. A photo was provided by Lake showing Lake and partner Michael Michaels standing behind McNair and an actor-friend at a club that night.
Testimony and records indicated that McNair was attempting to reach Bush that evening because Bush was hosting a high-profile recruit. Lake's number was provided to McNair by Bush, who was out with his family and Lake and Michaels. Lake doesn't recall the phone calls. The photo, taken by Michaels' phone, was described by McNair as something the USC coach and former NFL player often did when out in public.
The photo was also called into question by an expert in the USC Response to the NCAA because it was altered from its original format. Neither USC nor the Committee was able to be examine the original photo.
Sources close to the case tell USCFootball.com, that USC and McNair detailed the inconsistencies and errors by the enforcement staff at the Committee's Feb. 18-20 hearing and they will be an element in USC's appeal and McNair's appeal.
"If there are apparent errors, the Committee requires that the errors be brought up at the hearing," Buckner said. The new appeals process does not allow new evidence to be presented in the appeal.
McNair had been pursued by NCAA investigators for the almost four years before being found guilty of unethical conduct and given a one-year show-cause penalty by the NCAA. The penalty prevents him from any recruiting activities in that time.
The Committee found that the USC assistant "knowingly provided false and misleading information . . ." when questioned about his knowledge of Lloyd Lake.
The longest, most-high-profile infractions case in modern NCAA history found USC culpable on many fronts, including multiple violations of amateurism rules. However, the strongest link connecting USC to knowledge of impermissible benefits to Bush lay with McNair.
According to published reports, McNair was questioned for nearly eight hours over two days at the Committee's Tempe hearing. That's longer than many entire NCAA infractions hearings.
In the Case Summary, McNair's credibility was continually questioned by the enforcement staff. USC, in its Response to the allegations, stated that the enforcement staff "accepted at face value the allegations of the primary accusers and summarily dismissed the explanations of the accused . . . charges corroborated by little or no testimony or documentation."
USC also noted in its Response Lake's convictions of drug trafficking, theft, illegal possession of firearms, violence and domestic abuse. An FBI investigation also described Lake's involvement in a San Diego-based gang.
The NCAA countered by saying that, in addition to circumstantial evidence presented, Lake had tape recordings that supported his testimony. On the advice of legal counsel, however, the NCAA Infractions Report said that "the enforcement staff did not present those tapes to the Committee."
According to a source close to the case, and a review of the Case Summary, no tapes were ever cited to corroborate any allegations against McNair.
The NCAA's Osburn cautioned about relying too much on a Case Summary that "does not have all the documentation involved in the case . . . The Committee makes the decision."
But the enforcement staff, USC explained in its Response, needed McNair to make its case:
"USC believes the Staff has pursued these weak institutional allegations in football because it recognizes that without a direct institutional link, the allegations surrounding student-athlete 1 (Reggie Bush) involve amateurism issues with no institutional violation. After 3 1/2 years of intensive public and media scrutiny, including repeated public questions as to why USC football has not been 'brought to justice' by the NCAA, the pressure to accuse USC of having had actual knowledge of and direct connection to the alleged impermissible benefits is very real. The truth is that USC and the assistant football coach had no knowledge of the alleged impermissible benefits to student-athlete 1 and his family."