Todd McNair And USC's Case For Appeal

Two weeks ago, the NCAA's Infractions Appeals Committee announced that an appeal filed by former USC assistant football coach Todd McNair regarding the determination of his role and resulting sanction in 'Bushgate' had been rejected. In affirming the judgment of the Committee On Infractions, at least as applied to the assistant coach McNair - who was a central figure in USC's culpability in Bushgate - the Infractions Appeals Committee upheld years of NCAA precedent which - although USC fans and their enablers in the media generally don't have the ability to comprehend - was not a second chance for McNair (and USC when their turn came) to throw a bunch of new mud into the pile, and not an opportunity to re-litigate their original case. While the appeal by McNair was heard and determined separately from the main USC appeal, the central role that McNair played in terms of USC's fault, as well as the precedent that was applied by the McNair appeals committee does not bode well for a favorable decision for USC in the upcoming weeks.

Todd McNair and his attorney raised several issues with the findings of the COI, as excerpted from Section V of the Appeals Committee report below:

In his written appeal, the former assistant coach asserted that the finding of violation against him should be set aside because the finding of violation is clearly contrary to the evidence presented to the Committee on Infractions and there was a procedural error and, but for the error, the Committee on Infractions would not have made the finding of violation.  Additionally, the former assistant coach asked that the penalties imposed against him be set aside.  (Bylaws 32.10.4 and 32.10.4.1)

In the first issue raised on appeal, McNair claims that the finding against him is 'clearly contrary' to the evidence presented at the Infractions hearing. He followed that with a claim that a procedural error led to the finding of violations on his part by the Committee On Infractions.

Before starting, as a note for those desiring to get a handle on the NCAA's procedures for appeals from the COI, I wrote a pair of posts over the last year that may be helpful - the first, published soon after the COI's findings were released last summer is more of a comprehensive view of the process, while the second story was published after USC's appeal was heard over the winter. While the focus of the two pieces was on USC's case, the process and the precedent covered McNair's case just the same.

Much of the appeal hinged on the issue of witness credibility - McNair arguing that the COI improperly determined that the other party in the conversations - Lloyd Lake, one of the wannabe agents that paid Bush and his family - that ultimately led the committee to find that McNair (and USC as his employer) had knowledge of Bush's ineligibility was more credible than McNair. Under NCAA Bylaws (which I covered here), the COI has the power to determine witness credibility; the appeals committee, like in an appellate legal proceeding, does not reconsider the credibility of the witnesses in order to affirm or reject the prior finding. What the Appeals Committee did here was look at the record to see if the COI's weighing of witness credibility was proper under NCAA bylaws and prior cases:

... this committee is not without a proper role in the review of evidence presented to the Committee on Infractions.  And, we must caution that matters decided by the Committee on Infractions may not be insulated from review simply by denominating them "credibility determinations."

The appellate committee did feel that a reasonable person judging the case could haven taken the evidence as sufficient or insufficient support for the COI finding - not an uncommon occurrence in a proceeding where 'clear and convincing evidence' is the appropriate evidentary standard - but confirmed that the evidence was sufficient under that standard to support the finding against McNair.

As part of his claim of wrongdoing by the COI, McNair also claimed that a secret tape recording made by Lake during a telephone conversation was wrongfully used to make the credibility determination between McNair and Lake, to Lake's benefit. This point is one that has some USC fans seeing a multi-million dollar lawsuit against the NCAA, and it is a point that was not really covered in the appellate committee's report - whether the COI could use such a recording to conclude that one party is more credible. While keeping in mind that this is not a criminal proceeding, and not all the rules and precedent is similar, California courts have actually covered this ground already. While there is generally a bar in allowing such recordings to be used in evidence, there is an exception to this legal rule allowing a secret recording to be used for the purpose of impeaching the credibility of a witness (Frio v. Superior Court; People v. Crow - California attorneys, make sure I am not botching those cases...) - in this case, McNair's testimony about the substance of the recorded phone call. Again, this does not mean that this excepting allowing a secret recording to be used in evidence would apply to an NCAA proceeding, but there is a legal precedent for what the COI did.

In the appeal, McNair also claimed that the NCAA had actually prejudged his appeal of the COI's findings. I actually wrote part of a front page post on this point when McNair first filed his appeal last year, but never got around to finishing and publishing i. I am going to post that pre-appellate analysis now, and follow that up with what the Appeals Committee actually said about this point.

Another charge leveled against the NCAA by McNair's attorneys is that the NCAA has prejudged McNair's appeal, and that taken together with his other claims on appeal, the sanctions leveled upon McNair should be set aside. To be fair, the possibility of bias, even predetermination in the process of an appeal is a serious charge, which can do severe harm not only to the appellant, but to the entire system. So, lets take a look at this allegation. The supposed act of NCAA bias was set in motion by this post at USCFootball.com (and discussed here). An NCAA spokesperson sent this response out to various media sources (as posted by Miller, and cited by McNair's counsel)

The NCAA will not comment on the content of confidential documents. However, it is important to note that the recent story from fan site USCFootball.com takes select pieces of information from comprehensive documents out of context, weaving them into an inaccurate depiction. When reaching a decision, the Committee on Infractions carefully considers the hearing discussions and reviews all documents from all parties in their entirety, not just excerpts taken out of their original context.

On page 56 of the appeal, McNair's attorney states that his appeal shares some of the points that the USCFootball post referenced above made in its case against the NCAA. The appeal then attacks the above-posted response by the NCAA. According to the appeal, the first sentence is a critique of the USCFootball post, which disagreed with the COI's analysis in this case. The second sentence is dealt with in two ways: that the NCAA endorses the COI's methodology and processes, and that therefore the COI had considered all the evidence in this particular case. The appeal then takes the position that the above means that "Simply put, the NCAA came out in support of the COI and against McNair." Section 19.1.3(c) of the current NCAA bylaws state that the duties of the Committee on Infractions include:

Determine facts related to alleged violations and find violations of NCAA rules and requirements

Section 32.8 provides further details on the Infractions process, with a couple of relevant excerpts:

32.8.4 obligation to Provide Full Information. At any appearance before the Committee on Infractions, the involved institution and the enforcement staff, to the extent reasonably possible, have the obligation to ensure that the Committee on Infractions has benefit of full information concerning each allegation, whether such information corroborates or refutes an allegation.

32.8.8.2 Basis of Findings. The Committee on Infractions shall base its findings on information presented to it that it determines to be credible, persuasive and of a kind on which reasonably prudent persons rely in the conduct of serious affairs.

Maybe it is just the lawyer in me, but when I see "determine facts related to alleged violations...", I take it for granted that carefully considering hearing discussions (ie. depositions) and reviewing all submitted documents in full is a part of the job, and a pretty big part at that. Maybe if the NCAA media rep had simply emailed Miller a couple of bylaw cites and told him to look them up, instead of paraphrasing their content in a slightly expanded manner, everything would be ok (of course, that assumes that Miller (and other reporters) has ever looked at the bylaws, or knows how to do so). ... I know that Bellophron and Nestor have had a few things to say regarding Miller's brand of logic when it comes to SC, and while I hate to flog this particular carcass-with-hooves, I can't close this piece out without mentioning his reaction to McNair's appeal. Given the role of Miller's earlier ESPN.com posting in McNair's appeal, this was not his first dip into McNair's defense.

On reading the Appeals Committee report, it seems that they considered this line of argument - that a press release by a NCAA press flak meant that (an independent panel retained by) the NCAA had already decided an appeal - by McNair just as worthy as I did. From the end of Section VII of the report, the Appeals Committee notes that it has no connection to the press arm of the NCAA, and that it had no knowledge of this supposed damning release until McNair raised it in his appeal:

We reject the argument.  First, we note that, at the time the associate director sent the e-mail at issue, the only part of "the NCAA" which had any judgment to render was this committee.  We assure the former assistant coach that this committee had no role in the drafting or transmittal of the e-mail.  Indeed, this committee did not know
the e-mail existed until the former assistant coach raised it in this appeal.

In terms of USC's future, the appeals committee that is now deciding its fate is composed of a different group of university administrators, professors and lawyers than those who decided on Todd McNair's appeal. However, the precedent and procedure that their committee will be applying is the same that found that the findings and resulting sanctions against McNair was proper. As I noted last year, the standard for granting an appeal of either the findings or the penalties handed down by the COI under the NCAA Bylaws is as follows:

32.10.4.1 Penalties. A penalty determined by the Committee on Infractions shall not be set aside on appeal except on a showing by the appealing party that the penalty is excessive such that it constitutes an abuse of discretion.

32.10.4.2 Findings. Findings of violations made by the Committee on Infractions shall not be set aside on appeal, except on a showing by the appealing party that:
(a) A finding is clearly contrary to the evidence presented to the Committee on Infractions;
(b) The facts found by the Committee on Infractions do not constitute a violation of the Association’s rules; or
(c) There was a procedural error and but for the error, the Committee on Infractions would not have made
the finding of violation.

As the appeals committee that heard McNair's case - as well as those panels convened for appeals by other individuals and institutions over the past few years - have shown, the standard that must be reached to show wrongdoing by the COI is a high one. While I have previously written about how prior NCAA appeals show the process of how the USC appellate process would likely unfold, and the analysis that would be used, the McNair appeal shows how the bylaws. precedent and analysis was actually used and applied to the core facts of case against USC. The findings of the McNair panel are not determinative of what will unfold for USC in the coming weeks, but they do show how an appeals panel looks at and analyzes the relevant facts. The result is not a good one for Southern Cal.