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Ole Miss Goes to the Mattresses Against the NCAA

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Bold strategy, Cotton.

I won’t back down...
Christopher Hanewinckel-USA TODAY Sports

Ole Miss set the college football world aflame yesterday by submitting its response to the NCAA’s Notice of Allegations. While I’m certainly not above placing a few well-placed jibes at the Rebels, I philosophically want to be on their side on this.

College football recruiting is a dirty business, particularly so in the SEC. No one runs a completely clean ship that is beyond reproach. It benefits no one in the conference if all of the programs start ruthlessly ratting each other out for every violation. That is the road to ruin. Just ask the SWC.

Less selfishly, I’m philosophically opposed to amateurism. I think the NCAA is dedicated to denying that a market for these athletes exists, and wishing a market away does not make it magically disappear. Just ask the Soviet Union, while you’re trying to find entities that no longer exist. The market will find a way, even if you drive it underground. You can no more stop a river from flowing.

So I’m saying this as someone who has little sympathy for NCAA enforcement and, ribbing aside, does not want great harm to befall Ole Miss’ program: What in the hell are you thinking, Ole Miss?

Let’s start at the most basic point. The NCAA Committee on Infractions is not a court of law. They are not bound by the standard of proof that a criminal court is. There is no reasonable doubt here. To quote the NCAA, “the standard of proof is whether the information is credible, persuasive and of a nature that reasonable people would rely upon in the conduct of serious affairs.”

Whatever the hell that means. I mean, seriously? What on earth does that mean? That seems like it is even less than a preponderance of the evidence standard, the “more likely than not” standard used in civil cases. Persuasive? Heck, reasonable people rely on wrong information ALL OF THE TIME, and it is not inherently unreasonable to do so. This is a standard of proof that reads like it is actually lower than “more likely than not.”

Ole Miss responds to all 21 Allegations individually, admitting to lesser violations and even some of the more serious violations, but categorically denying the two big allegations: head coach liability and the dreaded failure of institutional control (Allegations 20 and 21).

I have no real desire to go through each of their defenses, nor do you have the desire to read it, so let’s try and keep this fairly high level without getting bogged down in the nitty gritty. Ole Miss’ defense essentially boils down to these points:

  • Barney Farrar acted independently and without the knowledge or consent of the program or the coach.
  • The program educated the Boosters on the rules, so there is a culture of compliance
  • Leo Lewis is a lying liar who lies a lot

Ole Miss additionally asks for no additional penalties, arguing that they their self-imposed sanctions are sufficient and that they have co-operated with the investigation. This investigation has been going on for four years, we’re on our second Notice of Allegations, and this response wasn’t even timely. I can buy the first part of the argument, but not the second. This has been a contentious and lengthy process, and trying now, this late in the game, to argue that Ole Miss has cooperated fully with this investigation from its inception is a difficult argument to swallow.

Barney Farrar

Former Ole Miss Assistant AD Barney Farrar is not implicated in every violation. In fact, he’s only the coach in question for Allegations 14, 16, and 17. But Ole Miss wastes no time in throwing him under the bus, calling him an outlier who does not represent the values of the program. They accuse him of deceiving the staff and thwarting Hugh Freeze’s culture of compliance.

I get the argument, as you need to throw the wolves somebody, but does Ole Miss really think this is going to work? By their own admission, he’s only involved in three of 21 allegations. So, even if he is completely guilty and working independently, you’ve only inoculated yourself from a small portion of the allegations. Even if you accept the argument wholesale and agree that Farrar is the bad apple, you’re still left with 18 allegations, including the big two. I don’t see what they hope to accomplish here.

Culture of Compliance

This is the crux of the argument. The program, and Hugh Freeze in particular, fostered a culture of compliance. The response details the training Freeze received and that he passed on to the coaches and the boosters. They sent mailings to boosters and businesses about what was impermissible behavior, he put the phone on speakerphone when talking to compliance so everyone could hear the answer, and the staff holds in-person events to educate the public on the rules.

That’s good evidence and absolutely needs to be in Ole Miss’ response. The NCAA alleges there is no culture of compliance, so you enter in evidence of compliance. Their evidence is both general and specific, and in the abstract, convincing to a reasonably prudent person. This is the meat, even if it’s the least salacious part of their response.

Here’s the problem: if there is such a culture of compliance, why are there so many violations? You can only hand wave away so many incidents of non-compliance as an outlier before it starts painting a damning picture of non-compliance.

Ole Miss has to explain away questionable ACT scores from 2010, recruiting violations from the 2012-13 class, the conduct of Barney Farrar in 2015, and ongoing booster activities. There comes a point that you have to say that even if Freeze is trying to institute a culture of compliance, it doesn’t seem to be taking.

This is where most schools would sacrifice the head coach. It’s what Ohio St did, and Tressel had more skins on the wall than Freeze. But Ole Miss is doubling down on its defense of the head coach, when they are not only under no obligation to do so, but have nearly every incentive not to. Pages 63-75 of the response is a full-throated defense of Hugh Freeze that amounts to this: we did nothing wrong.

Sure, there were some bad apples like Barney Farrar, but Freeze asked him if he was obeying the rules, and Farrar lied to him. Ole Miss claims that Freeze would follow up with prospects on compliance, looking for red flags, and then follow up with the compliance staff.

This is where the Level III violations sort of help Freeze. Hey, we caught these minor violations before they became something serious. We self-reported them, and it shows that we take compliance seriously. Were there no Level I violations, this would be a compelling argument. The problem is, there are multiple serious Level I allegations, so Ole Miss had to knock those down as well.

Leo Lewis

Ole Miss makes a big deal in its response that it did not have a chance to participate in the Leo Lewis interview. They argue that ““investigative process works best when the enforcement staff and the involved institution . . . have a full opportunity to meaningfully participate.” This e-mail was sent to encourage [Student-Athlete 39’s] participation in a joint interview with the University, but the principle applies to the enforcement staff’s conduct as well.”

This is all well and good, but it is a well-established practice of the NCAA that schools do not have the universal right to cross-examine witnesses. The NCAA lacks subpoena power, so getting witnesses to willingly subject themselves to that kind of treatment would make getting testimony nearly impossible. In Board of Curators v. Horowitz, 435 U.S. 78 (1978), the Supreme Court held that procedural due process is fulfilled when the accused receives notice and given the opportunity to respond to allegations and the evidence.

Ole Miss did get to interview [Student-Athlete 39]. They were denied access to the third interview, but not the prior two. They also, clearly, had every opportunity to respond to the testimony and refute it. Ole Miss dedicates page upon page of their response to tearing into every inconsistency in his testimony and attacking his credibility, going as far as to quote Leo Lewis’ twitter feed, ruining any pretense at maintaining the anonymity of [Student-Athlete 39]. Ole Miss dedicates three pages of its opening statement to attacking Lewis’ credibility, before they even get around to giving an overview of the allegations. Which sort of justifies the NCAA’s decision to meet with Lewis one time without Ole Miss present.

Here’s the thing. I completely understand wanting to cast doubt on Lewis’ testimony, but Ole Miss goes completely overboard, attacking not just his story’s inconsistencies, but attacking his motivations:

“The curious request for limited immunity – which [Student-Athlete 39] probably did not need because recruiting violations committed by a University booster would not usually render him ineligible at his current institution – raises the possibility that [Student-Athlete 39] was seeking to use the immunity process and his first interview to explain his access to large sums of money around signing day while deflecting questions about the true source of that money and simultaneously harming his team’s football rival in a very public way. [Student-Athlete 39’s] social media response to the University’s video announcing its receipt of the Notice, which seemingly celebrates the negative publicity that followed the announcement, indicates that [Student-Athlete 39] enjoyed causing the University harm:”

Is this the path you really want to go down, Ole Miss? Because if we apply the standard principle of what is good for the goose is good for the gander, then doesn’t this argument call into question the motivations of every single witness who testified on behalf of Ole Miss? Wouldn’t they want to defend the program from serious penalty?

Even if Ole Miss is right, and Leo Lewis is bent on the destruction of their program, this seems like the kind of argument you don’t want to make. Attack his credibility by showing inconsistencies. Demonstrate that he is subject to penalty as well, so he has incentive to get limited immunity. But actually arguing he is motivated by the need to harm your program is a bell you don’t really want to ring.

What’s Next?

Predicting the NCAA Infraction Committee’s behavior is a fool’s errand. The committee will read the reports, hold a hearing in which both sides will plead their cases, and then when they ever get around to it, issue a final report.

Ole Miss has self-imposed sanctions which they point out will cost the school at least $8 million. That’s not a minor slap on the wrist. And let’s be honest, no school is getting the death penalty, and certainly not for paying one kid $10,000, even if the NCAA believes that charge. So the punishment will be within that range.

It seems like Ole Miss is arguing a case to knock down reasonable doubt in a venue in which reasonable doubt does not exist. They also appear to be setting up a procedural due process challenge which, frankly, I believe is doomed to failure. That’s a lot of words spilled on two avenues which are likely dead ends for Ole Miss.

They can rightly question the credibility of Leo Lewis, but it likely will make the committee ask the same question of Ole Miss: do we believe you either? Their testimony is every bit as self-serving as Lewis’, yet the NCAA didn’t spend time in their report tearing each of them down personally.

Ole Miss is gambling heavily that they can save Hugh Freeze’s job. After reading their defense of the head coach and all of his alleged efforts to comply which ultimately proved to be in vain, it does seem to argue that he lacked institutional control. The school tried to do everything it could to comply, but all of these violations kept happening, by multiple people over multiple years.

It goes to show, you can’t stop the market. The question is, will the NCAA hold Hugh Freeze responsible for being unable to hold back the river with his hands?