MICHAEL ATCHISON

Some Perspective on the Clemons Tapes

Michael Atchison

In my first column in this space, I told you that I had no particular qualification to offer opinions on college basketball. I never played it or coached it. I’ve just watched a lot of it. But when it comes to discussing NCAA investigations, I have a somewhat greater level of credibility. Unlike most, I have been right in the middle of them.

Once upon a time, while practicing law, I did some NCAA infractions and compliance work. Not a ton, but enough. I appeared in cases before the NCAA Committee on Infractions and the Pac-10 Conference’s equivalent body. Some of those cases involved college basketball programs and coaches with high national profiles. And in all the time since then, I have rarely (if ever) read or heard an accurate description of the process by anyone who has not been in the thick of it.

That’s not entirely surprising. It’s a secretive process from which the press is specifically excluded. Investigations are performed privately, investigators are notoriously tight-lipped, and hearings are closed. In a world of second-hand sources and talk-radio speculation, the drama and hysteria surrounding the process is exponentially greater than that inside it. The amount of misinformation can be mountainous, especially compared to the molehill of truth contained in many reports.

With that as background, let me say something that you may find difficult, if not impossible, to believe: The fate of Missouri’s basketball program is no clearer to me today than it was before the release of Ricky Clemons’s incendiary jailhouse conversations.

How can that be? It’s simple. The information contained in the Clemons tapes (including the claim that he received a substantial pile of cash), in addition to being a tad vague, represents a tiny fraction of the information developed in the NCAA’s investigation of Missouri’s program, the vast majority of which isn’t known to us. The NCAA may have information corroborating Clemons’s claims. It may have information refuting them. It may also have information explaining them.

Years ago, I sat in a hearing that involved alleged NCAA rules violations by members of a Division I basketball program. One allegation arose from the claim of a player who had left the program under unpleasant circumstances. He told an investigator that his former coach had once given him money. The claim was not corroborated by other evidence, and it was denied by the coach. The school’s athletics director (who had no great affection for the coach, who had already moved to another job) possessed no specific knowledge of the facts, but he did possess some insight into the player. He explained that the young man had “a lot of pathology,” had experienced a difficult upbringing, and probably was not the most credible of witnesses. With little further discussion, the allegation was dropped from the case.

I will not tell you that the statements Clemons made on the tapes are true or untrue. I’m in no position to judge. But ultimately someone will have to make that judgment, and they’ll be presented with a far broader array of facts than those recounted in recent days. They’ll consider Clemons’s statements, but they’ll also consider his pathology. They’ll consider the wretched upbringing so well-documented elsewhere. They’ll consider how truth has sometimes been a fluid concept in his life, from manufactured stories of his mother’s death (she’s alive) to denials that he assaulted his former girlfriend, denials that came both before and after he pleaded guilty to the offense. They’ll consider statements from everyone who Clemons said is in the know, from Quin Snyder, Lane Odom and Tony Harvey, to Wally Bley (Clemons’s former lawyer), to Rickey Paulding and Arthur Johnson, some of whom are on record denying the claims. They’ll look for canceled checks, old receipts and closets full of clothes. In other words, they’ll look for a context in which to fit all of the information. Then they’ll make a judgment.

For those outside the process, context is often in short supply. People hear allegations and they explode, they get angry, they rage. Investigators don’t, and neither do the university officials who participate in the process. The fact of the matter is that they’ve probably known about the allegations on the tapes for some time, and they’ve heard this sort of thing before in other cases. They’ll take it all in, and give it measured, thoughtful consideration. Then they’ll decide how to proceed.

I don’t know what’s going to happen here, and the allegations in the case range far beyond the fireworks on the Clemons tapes. But the prediction, which depends on a very big variable, is easy to make. If any credible evidence comes to light corroborating those fireworks, the program is in trouble. But if everyone else’s testimony contradicts them, the NCAA enforcement staff and Committee on Infractions will discount the statements as the boasts of troubled young man with a lot of pathology.

What follows doesn’t pertain particularly to Missouri. Rather, it explains the process in general. My experience tells me that most people’s perceptions of the process deviate greatly from reality.

As anyone who is interested in the Missouri case knows by now, the process starts with a Letter of Official Inquiry, a document that the NCAA’s enforcement staff sends to a university when there is reason to believe that violations may have occurred.

After the letter comes the investigation, which typically is performed jointly by the enforcement staff and the university’s representatives, who take on the NCAA’s full authority to conduct interviews and otherwise investigate allegations. That’s the stage in which Missouri currently finds itself. Neither the NCAA nor the university has subpoena power. Under the law, they have no ability to compel anyone to share information. But they do hold a hammer over anyone involved in intercollegiate athletics. A refusal to cooperate constitutes Unethical Conduct under NCAA rules, which in and of itself is a major violation that can cost a person his ability to compete in a sport or to be associated with a program. Likewise, though the NCAA has no ability to take testimony under oath, giving false information during an investigation also constitutes Unethical Conduct.

Once an investigation is completed, if the enforcement staff believes that rules have been violated, it prepares a list of charges. The charges are allegations of specific rules violations, complete with supporting facts. The allegations may pertain to the program generally, but they may also pertain specifically to an individual, such as a coach. Both the university and the individual in question have a right to respond to the charges.

Once the list of charges is issued, a number of things can happen. First, those named in the allegations may investigate on their own, and the university and the individuals each may file written responses. The responses are a precursor to a hearing before the Committee on Infractions. But not all claims end up before the Committee, at least not in full. While the parties maintain their own investigations and file their responses, a dialogue remains open between the enforcement staff and the other parties. If one of the parties can demonstrate that the facts don’t support a particular charge, or that the staff’s reading of the rule in question is incorrect, the staff can withdraw the charge. I have seen that happen. Next, if all the parties are in substantial agreement that the infractions alleged actually happened, the case can go through a process called Summary Disposition. In that process, a school may adopt and self-impose penalties, subject to the approval of the Committee on Infractions. Finally, if charges are not withdrawn, or if the case is not resolved by Summary Disposition, the case goes on to a hearing before the Committee on Infractions.

This is the point at which much of the public loses whatever understanding it has of the process. One of the great misconceptions about NCAA investigations involves the division of labor. People think of the NCAA as a large, monolithic, capricious body. There seems to be a general belief that if the NCAA investigates a program, the NCAA believes in the program’s guilt and will ensure that probation follows. It doesn’t work like that.

There are a number of divisions within the NCAA, and the enforcement staff is one. The members of the staff are full-time employees who investigate allegations and then act essentially as prosecutors. They can be a little strident, and sometimes their readings of the rules tend toward the rigid, but (in my experience) they seem to carry no particular agenda other than to enforce the rules, which, of course, is their job. While the enforcement staff may allege that a program has violated the NCAA’s rules, they don’t make the determination that a violation has, in fact, occurred.

That job belongs to the Committee on Infractions, a group not employed by the NCAA. Rather, the Committee is comprised of faculty and staff from NCAA schools, as well as members of the public, like lawyers and judges. The Committee is an independent body, designed to ensure that all parties are treated fairly. The burden is on the enforcement staff to convince the Committee that a violation has occurred. It’s not uncommon for the Committee to disagree with the staff. In fact, it’s not uncommon for the members of the Committee to disagree with one another as they weigh the arguments.

The Committee meets a few times a year to hear cases. The meetings are held around the country, typically at resorts or hotels. Hearings are held in conference rooms. NCAA officials, including the enforcement staff, are present, as are university officials, parties who are named in specific allegations, counsel for the parties, and a court reporter. Members of the media (and everyone else) have to wait outside. A hearing starts with an overview of the allegations, and then the enforcement staff presents its case, charge by charge. The other parties are entitled to respond, and the Committee may ask questions. Some members of the Committee grasp the arguments easily. Some don’t. Some nod in agreement. Some express skepticism. At the completion of the hearing, the members of the Committee deliberate and make a decision. The decision typically is announced weeks later by teleconference, accompanied by a detailed written decision.

Questions, comments, maniacal rants?
Send them to atchison@tigerboard.net.