By Cecil Hurt
TUSCALOOSA | In two strongly worded documents that include terms such as "disturbing," "perverse" and "Draconian," the University of Alabama forcefully asserted its case for the reduction of penalties imposed on its football program by the NCAA Committee on Infractions in February.
"If this approach by the COI somehow wins the day, it will cripple much more than the University’s football program," UA said in its rebuttal appeal brief, one of the documents released on Monday. "It will make a mockery of the precedent ... that specific penalties correspond to underlying violations" ... [and] "destroy the vital principle of cooperation by which the NCAA and its allies are meant to be allies, not adversaries, in pursuing the shared goal of compliance."
Alabama released three relevant documents — its appeal of the sanctions (dated April 12), a rebuttal appeal brief (dated June 25) and a short letter briefly touching on recently decided NCAA infractions cases.
The NCAA response to the appeal was not included in the documents released, since that documents was never in the possession of University officials but was instead in the hands of a secure custodian. Thus, the Monday release contains only the UA side of the argument.
UA cited several issues on appeal but noted that "[the] University’s primary, overarching claim in this appeal is that the institutional sanctions imposed by the COI beyond those self-
imposed by the University are fundamentally unfair and, in any event, excessive."
"That sort of justice might sit well within the pages of Kafka," the rebuttal brief says at one point, "but it surely has no place within the NCAA."
Among the contentions and revelations in the appeal brief and the rebuttal brief are several points touching on testimony from "confidential sources."
UA did "waive" the bylaw prohibiting the use of a specific "confidential source" — normally prohibited by NCAA bylaws — for "strict, limited purposes." However, UA contends that the NCAA used testimony from that confidential source inappropriately, and, worse, conflated that source’s testimony with another unnamed source, an "administrator" whose identity "remains unknown to the University."
The testimony of the "confidential source" — and the Committee on Infractions’ heavy reliance on that testimony, particularly in the allegation involving Albert Means, a recruit from Memphis — has been a topic of contention since the additional penalties were announced.
University officials, bound to silence by NCAA regulations, have not revealed the identity of the "known" source. However, the UA’s appeal rebuttal brief does note that the "known" confidential source was interviewed in August of 2000 and April of 2001.
Additionally, the NCAA implies that the source is neither "an administrator" nor "a coach" by citing his occupation (redacted from the rebuttal brief) to distinguish him from the "March 2000" confidential source.
Alabama made the decision to allow the testimony of the "known" secret witness "in the spirit of cooperation," but limited the use of testimony from that source strictly to the Means charges. The COI, however, also used the testimony in connecting booster Logan Young to the Kenny Smith charges, a use that the UA appeal called "an egregious procedural error."
The testimony of the March 2000 confidential source was cited by the NCAA Enforcement Staff as "a trigger" that allowed it to postpone the "statute of limitations" clock on violations involving former UA recruit Kenny Smith of Stevenson. The Alabama rebuttal contended that such use of the confidential source was contrary to NCAA bylaws and that the statute of limitations should be enforced.
That confidential source was identified only as "an administrator" whose "coaches" also wanted to come forward. Since the source’s identity is "still unknown" to University officials, there was no indication in the documents released Tuesday if the source was employed at UA or at another school.
However, the strong weight given to his testimony by the Enforcement Staff — which had not given similar weight to a Smith-related report by Auburn compliance director David Didion in 1996 — lends credence to speculation that the source may have been employed by UA at the time of his testimony.
The initial appeal document also goes to great lengths to note the University’s strong compliance efforts in the wake of its 1995 Infractions case, and contends that the Committee on Infractions "impermissibly imposed maximum institutional penalties without finding any institutional fault."
The appeal referred to this as "a disturbing paradox" to which the record provides "no satisfying answer." The rebuttal brief also notes that the COI "very weakly" attempts to "salvage" the harsh penalties by insinuating a possible lack of institutional control, a position that UA says "flies in the face" of the COI position in the Infractions Report.
UA further contends that the NCAA Enforcement Staff "failed to account for its own culpability" in alerting Alabama to potential violations involving Kenny Smith in 1996.
That point was revisited in the July 8 letter brief, in which Cunningham noted that "a lapse by the enforcement staff" was used as a mitigator in a case involving the University of Minnesota. In that case, Minnesota was a repeat violator and was found guilty of a lack of institutional control, but received much lighter penalties than those imposed against UA.
One area in which UA did not take issue with the Committee on Infractions, however, was in the lifetime disassociations handed out to three boosters — Logan Young of Memphis, Wendell Smith of Chattanooga and Ray Keller of Stevenson.
"As the University readily acknowledges, the COI has clearly taken the right step in leveling permanent disassociations … and those penalties should remain intact," the appeal stated. "Continuing use of this ‘death penalty’ against rogue boosters holds great promise in deterring their conduct and eradicating whatever booster culture the COI may perceive at Alabama."
UA may have made additional oral arguments in its appearance before the Infractions Appeals Committee in Chicago last weekend, but transcripts of that hearing were not included in the document release.
UA will not find out whether its arguments for mitigation were effective for several weeks. There is no set timetable for a decision by the Infractions Appeals Committee, although UA officials expect a ruling in six to eight weeks.