Thursday February 18th, 2010

For three days beginning on Thursday, a 10-person NCAA committee will convene in a conference room at a hotel in Tempe, Ariz. There are more than 125 NCAA committees that meet during a calendar year and this one is no different in that its members are largely unrecognizable collegiate bureaucrats. The NCAA Web site lists three attorneys, three law professors, two conference commissioners and two athletic department officials as members of this committee, and while some of them played or coached collegiate sports, none have done so in the past 20 years.

The NFL, NBA, NHL, MLS and Major League Baseball are dictatorships when it comes to penalizing its members; a single person decides on sanctions. The NCAA has this group of 10, known as the Committee on Infractions (COI), one of the most powerful, yet least examined, entities in American sports. Most people could not name a single member of the COI or tell you how it comes to its decisions. It goes about its business in relative obscurity, its deliberations kept secret, its findings conveyed mostly via press releases. Rarely has so little been known about a group that wields such authority.

The spotlight rarely finds the COI, which makes the hearing in Tempe unique. Among the cases under review is the biggest to come before the committee in years, one that will bring media attention and fan scrutiny:


The NCAA has investigated allegations against the Trojans athletic department since 2006, one of the longest probes in the association's history. The possibility of major sanctions for the school has loomed in the background for years, the bane of its supporters and a beacon for its critics. Allegations include claims that 2005 Heisman Trophy winner Reggie Bush received improper benefits from multiple agents, including the use of a house for his family. Former USC basketball star O.J. Mayo, in his one season with the Trojans, also reportedly received money and gifts from an agent, and, most recently, investigators looked into a car driven by but not owned by running back Joe McKnight. MANDEL: Recent USC legacy in jeopardy

Given the profile of the school and the athletes involved it is a landmark case, one sure to stand as a litmus test for the NCAA's unique brand of justice. It also raises questions about the mysterious committee that acts as the NCAA's judge: Who are the members of the COI and how did they land on the committee? How do they review allegations like those against USC? And, perhaps most important, how do they determine what penalties, if any, to hand down?


The NCAA does not disclose the individuals who will hear a specific case, and it is common for COI members to miss a hearing and/or be replaced by a former member. Still, it is a safe bet that those judging USC in Tempe will boast impressive credentials. The COI chairperson, Paul Dee, is the former athletic director at Miami and a professor at that school. Britton Banowsky and Dennis Thomas are the commissioners of Conference USA and the Mid-Eastern Athletic Conference, respectively, and Missy Conboy has worked in Notre Dame's athletic department for 22 years. Temple law professor Eleanor Myers is an expert on legal ethics, and Rodney Uphoff, a professor at Missouri, is a former defense attorney who helped represent Oklahoma City bomber Terry Nichols.

Per NCAA guidelines, two of the 10 members must be women and three are "public" representatives, usually attorneys or former judges unaffiliated with a school or conference. The three public representatives on the COI roster are all lawyers, the most notable being Roscoe Howard Jr., a former U.S. Attorney.

Among the individuals judging USC will be Josephine Potuto, a tiny woman with red hair who teaches law at the University of Nebraska. (She confirmed to that she would be Tempe.) Potuto might be the smallest person in the room, but she will also be the most senior, having served on the committee since 1999. She is the person USC athletic director Mike Garrett, school president Steven Sample, and the others representing the school should fear the most as she is a fierce questioner and unafraid to call out school officials who attempt to massage the truth.

Hearings are closed to the public, transcripts of the proceedings are kept confidential, and COI members are forbidden from discussing cases. But Potuto's grilling of former basketball Georgia coach Jim Harrick in 2004 is legendary among followers of the COI, and in a 2008 Florida State hearing -- the transcript from which was transmitted to the university in a way that made it subject to open record laws -- she repeatedly cornered those defending the school.

When recruiting COI members, Potuto looked for people with "gravitas," which she says includes fearlessness in the face of a challenge from a high-profile coach or administrator. "My experience with Jo and the rest of the committee is that they want to be fair, but they won't do an institution any favors and they dig down pretty deep," says Michael Rogers, who represented Baylor in its 2005 hearing.

That Potuto will review a high profile case involving agents funneling money to athletes is fitting, as it was her comments on that issue that brought her to the attention of the COI. At a conference in 1998, Potuto listened as former North Carolina basketball coach Dean Smith and Big Ten commissioner Jim Delany bemoaned how agents were funneling money to basketball players. Potuto stood up and said it was interesting that a little money going to the players was such a huge concern given how much the NCAA profited off those same kids. Immediately after, a COI member approached her. "I think they liked that I was willing to challenge people who are respected in athletics," she says.

The most common way to get on the committee is to know someone on it or to impress when representing a school. Alabama law professor Gene Marsh, who served from 1999 to 2008, was asked to join after arguing on behalf of the Crimson Tide in a 1998 infractions case.

COI members will tell you it is a thankless (and unpaid) job. They meet, on average, six times a year for four days at a time. Each case requires about 20 hours of reading and a complex hearing like USC's can last 12 hours or more. "There are plenty of people who get on the committee and pull the rip cord early because they don't realize the time commitment required," Marsh says.

Not Potuto. Her longevity and embrace of the work stands out. Followers of the committee say anonymously that if they could grant her a lifetime appointment (members are limited to three, three-year terms) they would, and they predict that she will loom large during the proceedings in Tempe.

For that, USC has, coincidentally, the rule book to blame.

COI guidelines require a committee member to recuse his or herself when a school from the same conference is under scrutiny. Potuto's final term ended in 2008, but she was asked back for the USC case, likely as a replacement for Oregon law professor James O'Fallon.

In other words, the toughest person in the room wasn't even supposed to be there.


Prior to arriving in Tempe, Potuto and the rest of the COI received a case file detailing the infractions the NCAA enforcement staff has concluded were committed by USC, as well as any response by the school. This could be called evidence -- it often includes transcripts of interviews and other supporting documents -- but the COI rarely determines whether or not a rule was broken, a common misconception. By the time a school appears before the COI it is usually in agreement with the enforcement staff on the violations committed. USC officials (who declined to discuss their case with might take exception to the severity of some violations, but the two parties are likely to agree on the rules broken.

"One misconception is that a [COI hearing] is like a trial we would see in our judicial system," says Rogers. "It is very different." In an interview, Dee, the COI chairperson, referred to the process as "quasi-judicial" and "in a way like arbitration" and similar to an "administrative hearing," the variety of descriptors a testament to the unique nature of the COI's work.

Interpret may be the best description for what the committee does. They review the violations and then, while listening to remarks from school officials and others, they interpret the core cause of the misdeeds and whether the university's actions before and after the wrongdoing surfaced were sufficient. Thus, the task of the school officials present at a hearing is to push their own interpretation.

In the Florida State case, university president T.K. Wetherell attempted to paint the widespread cheating by athletes in several sports as the actions of a "rogue tutor," saying: "We don't really believe they cheated. They got inappropriate help." That may seem like a clever muddling of the facts, but a rogue tutor isn't as serious in the eyes of the COI as institutionalized cheating. Though the COI sanctioned the Seminoles -- including vacating wins in 10 sports and taking away three football scholarships -- it concluded that the school did not knowingly allow athletes who cheated to compete.

At the start of a hearing, the school under review and the NCAA enforcement staff make opening remarks. Then the COI members pose questions, and it is during this period when cases are won and lost. Depending on who is among the contingent from USC (former football coach Pete Carroll and Tim Floyd, the former basketball coach, reportedly plan to attend or participate via video conference), this could be the hearing's most dramatic stretch, with Potuto and others peppering them with questions and scrutinizing their responses.

The enforcement division's exact findings regarding USC won't be made public until after the COI's decision, but the committee is expected to conclude that Bush and Mayo received improper benefits from agents. Regarding Mayo, the school did an inadequate job monitoring the basketball program, a supposition supported by the university's imposition of sanctions on the basketball team in December, including a postseason ban this season. The school allowed Rodney Guillory, Mayo's handler, into its program despite the fact that the NCAA deemed him a runner for agents in 2000 when he paid the airfare for a USC player. The COI would surely have sanctioned the Trojans if the school had not taken action against itself, and it could still penalize the program further.

USC's interpretation of violations committed by football players would appear to be very different. Garrett, the Trojans' athletic director, said last month that the school had "some arguments" to make before the COI on that front. He is not likely to challenge that rules were broken but rather whether USC should be held responsible for the actions of Bush, his family, and the agents.

It is a defense that hits at a thorny issue for the NCAA: how much to hold schools accountable for the actions of the agents who court its players? On one hand, it is unreasonable to expect a school to monitor where all of its athletes' families live, what their parents drive and whom they might be receiving money from? On the other, Bush was not just any player, and it appears the agents operated right under USC's nose. According to Yahoo! Sports, the NCAA requested a copy of a photo of sports agents Lloyd Lake and Michael Michaels posing with Pete Carroll in the locker room after a game. USC also cleared Bush in 2005 to work as a summer intern for sports marketing agent Mike Ornstein, who was reportedly allowed on the sidelines for some USC games. Ornstein, like Lake and Michaels, allegedly provided Bush with improper benefits.

Many major infractions cases often come down to simple question -- what should the school have known? In Florida State's case, the school avoided the dreaded "lack of institutional control" label, which carries the harshest sanctions, and USC will hope do the same while in the tricky position of arguing that there were institutional failings in one sport (basketball) but not in another (football).

"It is a hard sell," says one lawyer with ties to the case. "It's the "what-more-could-we-do defense, and the problem with that is what a school could have done is open to a wide interpretation."


A widely held perception about the COI is that they go soft on cheaters, particularly high-profile schools. Pick any major infractions case from the last decade -- Ohio State in 2006, Alabama in 2002 and 2008, etc. -- and you can find a large segment of people that think the cheaters got off too easy and that the COI selectively spared a big (and profitable) program.

Potuto, Dee and others say that is folly. They judge a case on its merits, they contend, the profile of a school never comes under consideration. And yet it is hard not to note that the NCAA may have already done USC a huge favor.

In July 2008, the COI recommended sweeping changes in the severity of penalties assessed, including giving the COI the ability to impose postseason bans, hefty fines, bans on television appearances, and other penalties that hadn't been used in years. There were other recommendations, which when taken in total meant a seismic overhaul of how the NCAA penalizes cheaters.

A case like USC's, where the finding of a lack of institutional control is a real possibility, would seemingly be ripe for the deployment of the new penalties, and the perfect way to send a message to the rest of the association. "When people realize there is not a risk of severe penalties, they take chances," Dee says. "We wanted to put risk back on the table by dusting off some of these dormant penalties."

One problem: They are still dormant. Nearly 20 months after receiving the COI's recommendations, the Board of Directors has yet to ratify them. The COI may wish to throw the book at USC, but its hands will be tied by the slow-turning wheels of the NCAA machine. As a result, questions about whether justice was served will persist regardless of how the COI rules on the Trojans.

"The porridge will always be too hot or too cold," says Marsh, the Alabama law professor and former COI chair. "Some believe we are too harsh, others say too soft. No one ever says [the COI] got it just right."

At the conclusion of the hearing in Tempe, the COI will gather and begin talking through the issues until a consensus is reached on what penalties, if any, to hand down. Dee will then assign one member to write an opinion, which will be passed among the others to approve. The process takes about between eight to 10 weeks, meaning that sometime in the spring USC will know its fate. On that day, the debate over whether justice was served will rage on radio shows, blogs, and at water coolers across the country.

The COI, meanwhile, will drift back into the shadows.

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