Talk about a troubled environment
There is only one place to start any review of Todd McNair's 85-page appeal of the NCAA's attack on his credibility, his honesty and his conduct as an assistant football coach at USC.
The June 10 Infractions Report that, in effect, drummed McNair out of the coaching fraternity and harshly penalized the USC football program, has this scene I just cannot get out of my mind.
Here are the final words from Infractions Committee Chairman Paul Dee to McNair and his attorney, Scott Tompsett, as they prepared to leave the February hearing in Tempe, Ariz.. What Dee tells them could not be more clear:
"I'm going to read some of the closing instructions. It will be repeated at the end of the entire hearing, but these are for the benefit of Coach McNair and Mr. Tompsett.
Coach McNair, I want to advise you that after leaving the hearing today, that it is the Committee's expectation that nothing that is said will involve allegations concerning you. All allegations will have been discussed that do concern you.
Should the Committee believe that information being presented may affect you, the Committee will cease discussion of that allegation until you are given the opportunity to participate.
And then less than four months later, the Committee on Infractions did engage in discussions with a group outside the Committee, according to McNair's appeal. And it did not, as Dee had promised, include McNair or his attorney in those discussions. Nor has it yet informed McNair of what was discussed.
We do know, however, with whom it shared its preliminary report contrary to Dee's promises, NCAA rules and long-established precedents of fairness and legal proceedings. No impartial judge or arbiter, which the Committee on Infractions is supposed to be in this case, may deal with only one side before issuing a decision between two parties and still be considered fair, impartial and non-prejudicial.
But that's what the Committee did when it sent the report to a group outside the Committee, the NCAA's separate, or supposedly separate, enforcement staff.
Here's the problem and why McNair has to have been concerned. According to his appeal, and our own study of the case summary and both USC's and McNair's response, the enforcement staff has a record in McNair's case of misstating the facts and mischaracterizing testimony.
Here's just one instance detailed in the appeal. At the Tempe hearing, the NCAA's enforcement staff director Ameen Najjar said that the NCAA had no part in excluding USC and McNair from the enforcement staff's interviews of Lloyd Lake and his family.
". . . I want to make it clear it was not the enforcement staff that excluded them," Najjar said. "He [Lake] and his legal counsel excluded the University and the Pac-10 . . . nor as far as we know, did they [USC and the Pac-10] ever approach Lloyd Lake or his counsel to secure their own interview."
But according to USC attorney Mauch Amir, the enforcement staff said something else in an email sent to another USC attorney Nov. 6, 2007, the morning of the interview, from the same Mr. Najjar as quoted above as to why USC was "banned" from the interview.
In it, he says: "Let me clarify one thing. It is not my understanding that Lake banned USC from today's possible interview. When the enforcement staff raised the possibility of USC's participation early on, it created a number of complications coupled with the highly tenuous nature of the possible interview and the number of previously cancelled interviews, we thought it prudent at this time to simple (sic) attempt to get the interview."
So the NCAA excluded USC and the Pac-10, not Lake's attorneys, as the staff had said at a hearing when USC and McNair were there to hear it, McNair's appeal says. Imagine what the same staff might have said when USC and McNair weren't present, as Chairman Dee assured them that they would be.
And "imagine" is all anyone representing McNair and USC can do since they were not only excluded from the Lake interview by the enforcement staff, they were apparently excluded from the negotiations about what the final report would say.
As to USC not attempting to interview Lake, the appeal says the NCAA was given a copy of a letter from a USC attorney requesting such an interview that Lake and his attorney took immediately to the press. USC's conclusion: "The NCAA . . . knew full well that we were trying to get the interview."
Also, according to McNair's appeal, the staff misstated McNair's explanation of his Oct. 29 phone calls as "completely new information" when McNair's earlier testimony shows it was not.
And the report also mischaracterized the testimony of Lake's girlfriend as corroborating that Lake made a phone call to McNair Jan. 8, 2006, asking him to make the deal with the Bush family right for him or he'd go public. Our own reading of the testimony made it clear there were three problems here.
According to the NCAA's own case summary, Lake's girlfriend was not present for the call and did not hear it. She only said he was going to make a call. And she had no idea to whom he would make it or who McNair was.
McNair's appeal makes the case that the only way some of these mistakes were caught at the hearing was because attorneys for USC and McNair pointed them out. But who's to say what mistatements were made about McNair in the final "corrections" for the report that neither USC or McNair was a party to?
There's also the question of the NCAA "prejudging" this case in its response to USCFootball.com's "NCAA Missteps on McNair" story that pointed out many of the problems with the NCAA's case. In an email from Stacey Osburn, the NCAA's director of public and media relations to at least two ESPN reporters, Osburn endorsed the Infractions Committee's report and methodology and attacks our story.
And she does so months before McNair's November appeal will be presented to the NCAA's Infractions Appeals Committee, clearly putting the weight of the organization on one side of an issue before it's been decided according to the NCAA's prescribed procedures. And she did so just days after saying to USCFootball.com that no one other than Chairman Dee would be permitted to comment on the case.
And then Osburn refused to provide a copy of the email to Tompsett for his use in McNair's appeal even though she'd sent it to the media.
And if the NCAA has prejudged McNair's appeal, hasn't it, in effect, nullified his right to appeal?
And then there are the so-called "Lake tapes" and what maybe is on them and how that affects McNair's case. A perfect example of how the well has been poisoned against McNair was reflected in one of the first emails received at USCFootball.com this morning after the McNair appeal story was published.
Here's an excerpt:
"For Todd I believe it comes down to this: What is on the tape from that call? . . . If that is a smoking gun he is hosed."
It isn't. But you'd have to read the report very carefully to realize that because of the way the Committee includes the tape references.
The Committee says it did not listen to the tapes but that the possibly illegal-in-California tapes were used to establish Lake's credibiity over McNair. But how can tapes that weren't ever in evidence be used to establish anything here? But they were.
What may be more wrong is how Lake's two surreptitious recording tapes were only of his conversations with Reggie Bush's stepfather, Lamar Griffin, and do not refer at all to McNair. And no recording implicates McNair.
McNair's attorney informed the Committee of that fact and his appeal contends that it was never contradicted. But the Committee does not make that clear in the report, just leaves it out there in a way that allows people to assume that the tapes must in some way implicate McNair or why include them.
And on and on. If you don't have time to read the whole McNair Appeal, we'll hit the highlights here for you.
According to the appeal, the NCAA's findings: are clearly contrary to the evidence . . . based on factually incorrect and false statements . . . depend on mischaracterized testimony of the sole accuser of McNair, Lloyd Lake . . . include internally inconsistent findings . . . are contrary to the evidence and based on procedural error . . . involve pre-hearing and post-hearing misconduct . . . used false statements to support its unethical conduct finding . . . materially mischaracterized, changed and embellished Lake's testimony to fit the theory of the case . . . an exercise in sophistry and prejudicial, procedurally improper, intellectually dishonest and should be set aside.
What the appeal describes as "demonstrably false statements" seem particularly disturbing. As does the NCAA's failure to point out Lake's credibility problems while going on at great length, often incorrectly it would appear, about McNair's.
Here's just one false statement. It's about the person McNair hired to assist him in starting a record label. The report then has this footnote discrediting this witness and McNair's testimony about it: (Note: No such enterprise was ever started.)
But McNair did start a record label, Blakout Records, and this person did a considerable amount of work for him that the NCAA does not reference. But in the testimony, the NCAA asks USC about how the California "moonlighting" law affected McNair in this venture while saying at the same time that he was not moonlighting since he didn't start the record label.
And in the infamous Oct. 29, 2005 photo with McNair and Lake and two others, the NCAA offers internally inconsistent explanations.
First, it said that McNair must have known Lake and knew about his agency and that was why he called and planned to socialize with him that night. And it also contended that it was on this occasion that Lake was first introduced to McNair.
Both findings cannot be true.
They're mutually inconsistent and contradictory.
NCAA, we have a problem.
And to paraphrase slightly from the first page of the NCAA's findings on USC, does McNair's appeal allow us to see into "a window into a landscape" of an "environment surrounding the violations" report that has "troubled" many who have taken the time to study it in detail.
Read the appeal and you decide. It's the most interesting read you'll have this summer.
Dan Weber covers the Trojans program for USCFootball.com. You can reach him at email@example.com.