There are many questions that one would have in reading Todd McNair's appeal to the NCAA.
Questions like:
The COI contradicts itself about the relationship between McNair, Lake and Faison Love, (pages 41-42) and how that contradiction was used to hurt McNair's credibility.
The McNair Legal team not being allowed to read Loyd Lake's testimony until three months after his lakes testimony, (page 51).
There are others...Too numerous to discuss right now.
But one thing significant stands out.
It would appear that the NCAA not only violated its own bylaws when preparing their report against USC but that they have their own issues with a lack of institutional control.
Bryan Fischer explains it perfectly...
The most serious charge leveled by McNair was of post-hearing misconduct by the NCAA. According to the appeal, the committee [COI] had ex parte communications with the enforcement staff by sharing a draft of the committee's infractions report in order to correct "factual errors." NCAA bylaws 32.8.8 and 32.8.8.1 prohibit such ex parte communication.
"That kind of communication is strictly forbidden," former committee chairman Tom Yeager said. "The committee has so many attorneys on it that would raise all kinds of red flags; they just wouldn't go down that way. In my years on the committee, the conversation with any NCAA (staff) is almost exclusively with the committee's own staff people. They just don't talk to the enforcement staff.
"What normally happens, is that the (enforcement) staff does not know the contents of the report. They just don't."
Normally?
This case has been anything but normal.
Strictly forbidden?
You mean like having an investigator spoon feed a witness, walking him down the path you want him to be on in order to cobble together your case?
If we are to believe Yeager then the NCAA has a very serious charge on its hands that's going to be hard to explain away.
NCAA bylaws state that when the enforcement staff is contacted to assist the committee, all parties will be able to respond to the information. No such notification or response occurred in USC's case according to McNair's appeal.
"Have there been occasions when somebody on the enforcement staff will come in and catch something in the report when finished, something that might be misstated or a date wrong? Yes," said Yeager. "But it's basically correcting any factual issues that wouldn't change the committee's deliberations or their outcome."The appeal states that McNair's attorney contacted the NCAA director of enforcement Ameen Najjar regarding the release of the committee's report. Najjar stated that committee had shared its report with the staff to "correct factual errors." The conversation took place almost a week before the final report was released.
Really?
But isn't that against the bylaws mentioned above?
Looks like someone opened their mouth when they shouldn't have.
I would venture to guess that the NCAA will simply pass this off as no big deal...they were simply "proof reading"...
Heck I would lay odds on it.
The NCAA has broken not only the basic tenants of the rule of law (which it appears they are above) but also their own bylaws just to make their case against USC.
Call me a homer, call me conspiracy theorist but how can anyone accept this.
That any self respecting lawyer would accept this should have his/her license pulled. This goes beyond petty bickering about fandom and rivalry. That an institution like the NCAA will get away with this is a disgrace. I now understand what Alabama fans felt like when the NCAA used Fulmer's secret testimony when they got nailed.
Don't get me wrong, I am not looking for sympathy...'SC has plenty to blame itself for. Letting Guillory back on campus, with Mayo in tow, with his known reputation and the general lack of a compliance office over seeing the basics like checking if the proper forms are filled out correctly didn't help our case. The general tone of arrogance and lack of an aggressive PR campaign from the athletic department and the administration as a whole showed that they thought it would just go away.
Nothing changes here. The burden of proof is even higher in the appeals process than it is in the investigation process.
They have stacked the deck in their favor.
Not surprisingly, the higher standard of proof was proposed and implemented by Paul Dee, due to the inordinately high amount of cases that resulted in successful appeals.
A little known and publicized fact behind this was that in order to have these tougher bylaws implemented, Dee wrangled a legislative work around that didn't require the NCAA member schools to vote on it. Dee strengthened the power of the COI, and weakened the appeals committee because he didn't approve of another branch of the NCAA overruling his committee's decisions.
So you can see that I have little faith in this changing anything...
We have no idea what USC's appeal will look like, but if we or they are hoping that McNair's appeal will plow the road in their quest to overturn the sanctions I would not bet on it. The only way this gets fixed is in court and I have little expectation that the administration has the stomach for that type of fight.