Yesterday a California appellate court ruled that disgraced former assistant USC football coach, Todd McNair, "made a sufficiently convincing showing that the NCAA recklessly disregarded the truth." This is not the first time that a court has ruled that the NCAA's investigations are flawed, but it is certainly a clarion call that the NCAA needs a new investigative system. Ironically, just such a system was suggested to the NCAA in 1991 by a committee, which included a retired Chief Justice of the U.S. Supreme Court, formed by the NCAA to study this problem. To date the NCAA has ignored the recommendation of its own committee to have retired judges preside over hearings on major NCAA infractions. That needs to change before more reputations are ruined by NCAA incompetence and corrupt procedures.
The McNair case descends to new lows regarding both incompetence and corrupt procedures. It involves the well-known proceeding in which Reggie Bush was alleged to have received improper payments while playing running back for USC. The payments allegedly came from, among others, a convicted felon, who allegedly had a two-minute-twenty-three second call with McNair on January 8, 2006 at 1:34 a.m. Incompetently, however, the NCAA investigators asked McNair about January 8, 2005, one year earlier, when there was no evidence of any phone call. The investigators never corrected this mistake. Based only on this flimsy evidence, the NCAA found that McNair (and therefore USC) knew of the payments the NCAA had accused Bush of receiving.
As bad as the incompetence is, the corrupt procedures are worse. The NCAA rules at the time properly required that only voting members of its Committee on Infractions may deliberate in an enforcement proceeding. Nonetheless, the NCAA's Coordinator of Appeals, who could attend deliberations but not participate or express an opinion, sent to the support staff liaison of the Committee on Infractions an email, which the court quotes as follows: "Obviously this email is going only to you. I haven't been able to sleep for 3 nights because I fear that the committee is going to be too lenient on USC on the football violations. I think that would be a huge mistake in light of the evidence against Bush. It is incredible to think that he wasn't involved from the start. [Another NCAA colleague] and I both are concerned because the evidence in our view is overwhelming that he was involved in 2004 and we are surprised at the very [sic] level of proof demanded by some of the committee members. I am working on a long memo summarizing the evidence..." The NCAA support staff liaison of the Committee on Infractions responded, according to the court, that "individuals like McNair shouldn't be coaching at ANY level....He's a lying morally bankrupt criminal, in my view, and a hypocrite of the highest order." According to the court, "Neither McNair nor his attorney were made aware of these emails or given an opportunity to respond to them."
The NCAA's defense to the above does not inspire confidence in its system of adjudication. According to the court, the NCAA asserted that "most of the facts disclosed in the [COI] report are true." The NCAA also gave a 10-page interview to the press which described the results of its investigation regarding McNair and which McNair has alleged further ruined his reputation.
Therefore the court's conclusion that McNair has shown a probability of prevailing on his slander allegations against the NCAA is not surprising. What is surprising is that the NCAA continues to ignore the recommendations of the blue ribbon committee it convened in 1991 to address its flawed system of adjudication.
