The NCAA Division I Infractions Appeals Committee (“Committee”) recently reviewed and affirmed the Committee on Infractions’ (“COI”) decision relating to former University of Southern California (“USC”) assistant football coach, Todd McNair (“McNair”). 

The COI found that McNair violated multiple NCAA bylaws including unethical conduct, violations of amateurism legislation, and failure to report knowledge of NCAA violations. The violations at issue relate primarily to a conversation that allegedly took place between McNair and one of the individuals (“agency partner”) allegedly involved with Reggie Bush (“Bush”).  The agency partner reported that he had a telephone conversation (confirmed by phone records) with McNair in which he requested that McNair convince Bush to adhere to an agreement Bush’s family entered into with his agency or reimburse the agency for money expended (disputed by McNair).  The COI concluded that McNair provided false information regarding his knowledge of the telephone conversation with the agency partner and he failed to report these violations to USC’s compliance staff.  As a result, the COI issued the following penalties relating to McNair’s alleged conduct: 1) he was prohibited from engaging in any on or off-campus recruiting activities with prospective student-athletes; 2) he was required to attend the 2011 NCAA Regional Rules seminar; 3) if an institution other than USC employs McNair, then the new institution shall inform the COI within thirty (30) days of his hire; and 4) at the end of the show-cause penalty USC or another institution employing McNair shall confirm the penalties were complied with during the time of employment.

McNair set forth his appeal and raised the following issues:

1. The COI used false statements to supports its unethical conduct finding against McNair.
2. The COI’s adverse credibility determinations against McNair are clearly contrary to the evidence.
3. The COI improperly relied on the agency partner’s surreptitious audio tapes to conclude that the agency partner was credible.
4. McNair was denied fair process because the NCAA enforcement staff excluded USC from participating in the interviews with agency partner and his family.
5. The COI had impermissible ex parte communications with the enforcement staff about the infractions report.
6. The NCAA prejudged McNair’s appeal.

The Committee broke McNair’s appeal into three (3) categories including, issues of credibility, alleged ex parte communications, and the “prejudgment” of McNair’s appeal.  As it relates to issues of credibility, McNair stated 1) the COI changed or mischaracterized the agency partner’s testimony; 2) the COI’s findings that McNair was not credible are internally inconsistent, contradictory, and based on false statements and mischaracterizations, and 3) the COI did not make credibility findings based on true and correct facts.  The standard of review for such determinations is that the finding “is clearly contrary to the evidence presented to the COI.”  The Committee considered the arguments presented by McNair and the COI and the opposing characterizations of the telephone call between McNair and the agency partner and concluded the evidence meets the required standard of review.

Next, the Committee discussed the alleged ex parte communications between the enforcement staff and the COI.  McNair stated the COI shared its draft report with the enforcement staff so the enforcement staff could inform the COI of any “factual errors” in the report, which “creates a rebuttable presumption of prejudice.”  After reviewing the information, the Committee certified several questions to the COI to determine the basis and information exchanged with the NCAA enforcement staff.  Based on the responses made by the COI, it appears the NCAA enforcement staff only provided additions relating to typographical errors and served a ministerial function.  As a result, the Committee concluded no prejudice resulted from the communications.

Finally, the Committee discussed McNair’s argument that the NCAA prejudged his appeal.  His argument pertains to the NCAA addressing comments made on a USC football Web site relating to the COI’s decision.  The Committee flatly rejected this argument and stated the Committee bases its decisions on the record and applicable adjudicatory principles and does not consider extraneous matters. 

In sum, the Committee denied McNair’s appeal and the penalties accessed against him shall stand.

For any questions, feel free to contact Christian Dennie at cdennie@bgsfirm.com.