What the NCAA's "Improper Conduct" Means for USC and Its Sanctions

Lisa Horne@LisaHornePac-12 and Big 12 Lead WriterJanuary 28, 2013

While most of the national media has been focused on how the news of the NCAA's "improper conduct" in the Nevin Shapiro scandal could affect the University of Miami's potential punishment, another school that has already received punishment from the NCAA could thrust itself in the spotlight as well.

The University of Southern California. Football's pariah.

In June 2010, USC was sanctioned by the NCAA with a two-year postseason ban, the loss of 30 scholarships over a three-year period and a four-year probationary period due to the school's lack of institutional control regarding student athletes in multiple sports. 

The NCAA's Infractions Report is lengthy (65 pages!) and goes so far as to mention that the committee considered a television ban—which is just shy of the death penalty in college athletics—as part of the punishment it could dole out. Why the NCAA felt the need to add that in the report is mystifying but it certainly shows its level of pissivity, if nothing else.

Robert Swanson, a former USC Associates board member and current season-ticket holder, told me that some alumni (including himself) viewed that television ban mention as a proactive threat from the NCAA to USC—if the school sought relief via the appeal process, the NCAA could reconsider the initial penalties it imposed and add in a television ban.

Paranoia? Perhaps, but the NCAA is an association which answers to no one. USC did file a meek appeal but to no one's surprise, lost without further repercussions.

To understand why USC fans and alumni were so upset with the NCAA's final decree, you have to go back over the last 18 years and compare what other schools received in penalties for far more serious violations. 

In 2002, Alabama received a two-year bowl ban and the loss of 21 scholarships over three years stemming from a pay-to-play scandal involving Albert Means, a recruit out of Memphis. That particular case involved payment for a student-athlete to sign a letter of intent with Alabama—that violation is what the NCAA views as the most egregious of all violations involving student-athletes. Nevertheless, Alabama's sanctions were considerably lighter than the sanctions slapped on USC.

Some college football analysts believed USC's sanctions were too heavy-handed, considering the thin amount of evidence the NCAA's Committee of Infractions (COI) used to prove USC knew or should have known that Reggie Bush was receiving impermissible benefits. 

USC had always maintained that it didn't know student-athletes were receiving impermissible benefits—that's key in cases where institutional control is being questioned. But Paul Dee, the chair of the COI, didn't see it the same way. Dee admonished USC by saying it had to do a better job in compliance because "high-profile athletes demand high-profile compliance." 

Paul Dee's long tenure at Miami perhaps suggests he has had experience in compliance issues—and he has, but unfortunately it wasn't of the positive kind.

Dee was Miami's athletic director from 1993 to 2008 during which time the school's football program was hammered by the NCAA.

In 1995, the school was reeling from a Pell Grant scandal in which 57 players received over $200,000 in federal financial aid stemming from falsified applications. There's a lot more than just that but the point should be made that the university was deemed to have lacked institutional control while Paul Dee was in charge.  

Sports Illustrated columnist Alexander Wolff wrote an article via an open letter to Miami president Edward Foote II regarding his disgust over the Pell Grant scandal. An excerpt from that letter:

Fifty-seven players were implicated in a financial-aid scandal that the feds call "perhaps the largest centralized fraud upon the federal Pell Grant program ever committed." And among numerous cases of improper payments to players from agents was one in which the nondelivery of a promised installment led a Hurricane player to barge into an agent's office and put a gun to his head.

Miami, according to CBSSports columnist Dennis Dodd, received a 24-scholarship reduction over three years, a one-year postseason ban and a three-year probationary period. Massively defrauding the federal government is apparently not as bad as a sports marketer paying for a kid's parent's rent, judging by the NCAA's comparative sanctions on the two schools. 

Like Alabama, Miami's sanctions were lighter than USC's sanctions. You would think Miami would have learned a valuable lesson after the Pell Grant scandal, wouldn't you? 

Miami booster Nevin Shapiro allegedly showered Miami recruits and players with access to cash, gifts, sex, booze, drugs and parties from 2002 through 2010—the long, mind-boggling report by Yahoo! Sports can be read here. The athletic director who oversaw all but two years of Miami athletics during that time period was, you guessed it, Paul Dee. 

Dee's response to Nevin Shapiro's alleged involvement was a stunning display of hypocrisy.

"We didn't have any suspicion that he was doing anything like this," Dee said in 2011. "He didn't do anything to cause concern."

Dee—the same man who allegedly allowed Shapiro to lead the Hurricanes on to the field before a game—plead the "we didn't know" defense on behalf of Miami despite his previous beatdown of USC for not knowing what was going on with Bush.

ESPN's Ted Miller even pointed out Dee's hypocritical statements regarding USC's violations while more severe violations were being committed under his watch while serving as Miami's athletic director:

Here he waxed sell-righteously -- and inaccurately -- over the USC case: “This case strikes at the heart of the principles of amateurism.” ("Inaccurate" because booster pay-for-play strikes at the heart of amateurism, not agents trying to lure players AWAY from amateurism). 

Columnists Stewart Mandel (Sports Illustrated) and Dennis Dodd (CBS Sports) would only have to wait one year before they too could express their ire over the COI's inept and beleaguered leadership. 

Even more compelling is that Dee's former employer (Miami) benefited from the sanctions he oversaw as the COI's chair—the No. 1 prospect in USC's 2010 recruiting class (according to Scout.com, among others), Seantrel Henderson, decommitted from USC after the sanctions were doled out and eventually signed with Miami.

The NCAA's COI has maintained that because every one of its cases is different, there is no precedent for sanctions. But that's also a convenient way to not have to answer to any institution that cries "unfair" after receiving its punishment. 

That may change shortly.

Former USC running back coach Todd McNair filed a lawsuit last year against the NCAA charging libel, slander and breach of conduct. McNair had been punished by the NCAA with a one-year show-cause penalty which required any school attempting to hire him in a coaching capacity must get NCAA approval.

The NCAA determined that McNair knew or should have known of Bush's relationship with a would-be sports marketer and thus, a lack of institutional control existed within the compliance department which enhanced the school's penalties. 

The presiding judge in McNair's civil suit against the NCAA, Frederick Shaller, recently ruled that the NCAA was "malicious" in its investigation of McNair. That ruling is now under appeal.

Reign of Troy's Trenise Ferreira, a USC blogger, recently contacted attorney Lincoln Bandlow, who is considered an expert in defamation law, for a summary of the case's current status:  

Bandlow explains that when McNair filed a defamation lawsuit, the NCAA brought an anti-SLAPP motion, which means the organization believes its investigation of McNair was thorough and fair and there is no way he could win his case, which will surely be lengthy and expensive. In disagreeing with the NCAA, Judge Shaller is saying that he believes there is enough evidence to show actual malice, which is what McNair’s lawyers need to demonstrate to prevail in this case. Since McNair was a football coach at the time of the investigation, he is considered a public figure, and so the standards of his defense change.

“The judge likely found evidence showing the NCAA shouldn’t believe what they were about to say,” suggests Bandlow. But if it’s just that  [the NCAA] didn’t like him, that’s not enough.”

“All that matters is if they knew the truth and hid it,” said Bandlow, meaning that McNair’s attorneys need to prove there is evidence that the NCAA had no proof of or knew that McNair had no involvement in the situation surrounding Reggie Bush, yet they held him responsible anyway.

McNair's lawyer has maintained that the NCAA knew it had questionable evidence against McNair. In an Orange County Register report, Bruce Broillet, McNair's attorney, reacted to the judge's favorable ruling toward McNair:

[Broillet] said during the hearing that the records showed the agency knew it was relying on false statements about McNair’s conduct and wanted to “nail” the coach, who also played in the NFL.

“They wrote evidence the way they wanted it to be—that’s malice,” Broillet said.

[NCAA attorney Laura] Wytsma rejected that contention in court, saying the evidence in the case show the committee that investigated McNair was trying to get its report right.

“They were struggling to get the right result,” she said, adding that several members of the investigative committee were prominent lawyers and legal scholars.

She also argued that records in the case should not be unsealed, saying it would hurt future investigations. The NCAA does not have subpoena power, she said.

The NCAA appears to be using its lack of "subpoena power" as a strawman defense over its investigative tactics. In the newly released NCAA report in which the NCAA admits to improper conduct in the Miami scandal, the second paragraph is particularly noteworthy:

As it does not have subpoena power, the NCAA does not have the authority to compel testimony through procedures outside of its enforcement program. Through bankruptcy proceedings, enforcement staff gained information for the investigation that would not have been accessible otherwise.

The fact that the NCAA cannot compel witnesses who aren't employed by an institution to testify in investigations—nor can it compel any person who is no longer an NCAA student-athlete—seems to be a recurring theme. 

Can USC sue the NCAA for malice? Possibly.  

If the NCAA decides to settle out of court with McNair, it could stipulate that settlement be sealed from public record and/or McNair sign a confidentiality agreement which could carry heavy financial risk if McNair testified on USC's behalf. 

USC athletic director Pat Haden recently told Los Angeles Times reporter Gary Klein that USC is aware of what is going on with the McNair case's proceedings:

Haden and USC are monitoring a lawsuit filed against the NCAA by former running backs coach Todd McNair in the aftermath of its Bush investigation. A Los Angeles Superior Court judge ruled in November that emails between an investigative committee member, an NCAA worker and a person who works in the agency's appeals division "tend to show ill will or hatred" toward McNair and that McNair has shown a probability that he can win his defamation claims. The ruling is under appeal.

"If the facts come out as have been suggested we would probably reconvene and have a look," Haden says.

Haden, for what it's worth, won two national championships (1972, '74) playing quarterback at USC. He was also a Rhodes Scholar and up until 2010, was a partner in the law firm of Riordan, Lewis and Haden.

To say Haden has USC's best interests at heart would be an understatement. Couple in his legal background and there is no doubt Haden fully understands what USC's best course of action will be when McNair's appeal process has run its course.

Taking on the NCAA could be risky since the NCAA is currently investigating USC over whether or not former running back Joe McKnight received impermissible benefits. Then again, the NCAA had been coming off an embarrassing investigation of UCLA basketball player Shabazz Muhammad—an NCAA employee was reportedly dismissed after her boyfriend leaked information about the investigation while on an airplane. And now there is the improper conduct in the Miami case. 

The blood in the water may prompt USC to finally take that beast head on. Kick 'em when they're down. 

USC could ditch its pariah status and unintentionally be crowned college football's messiah.

Because for the first time in college football history, nobody would be rooting against the Trojans. 


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