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Aug 23, 2002

Wrangling with confidentiality and credibility

Featuring: Robert T. Cunningham

By Cecil Hurt 
tuscaloosanews.com 

There has already been far too much “death penalty" rhetoric connected with the University of Alabama’s NCAA Infractions case. However, the recent release of Alabama’s appeal and rebuttal briefs have revealed at least one prime target for termination ó not a football program, not an individual, but a concept. That concept is the “confidential source," as employed by the NCAA. 

The reliance on “confidential sources" is contrary to the basic principles of due process. The founding fathers of this country saw it, rightly, as an invitation to abuse. But it seems that the NCAA Enforcement Staff has accepted the invitation. 

The NCAA has a bylaw (32.7.5.5.1 for those who check such references) prohibiting the use of such sources in Infractions Committee hearings. The University of Alabama, in its case, waived the bylaw for certain very narrow uses in relation to the Albert Means allegations. That may not have been wise, but it was certainly an extraordinary gesture of compliance. Unfortunately, the temptation to run wild with that waiver proved too much for both the Enforcement Staff and the Committee on Infractions. 

For its part, the COI used information from the “approved" confidential source in ways that were not authorized by UA. The Enforcement Staff, meanwhile, threw another “confidential source" into the mix ó the so-called “Secret Witness No. 2" or “Secret Administrator" ó into the mix. Now, a close reading of the appeal documents reveals yet another conflation or (inevitably) Secret Witness No. 3. 

In the Feb. 1 Infractions Report, the COI specifically identifies the “approved" confidential source by a designated phrase ó “the witness." Then it goes on to state (on Page 13) that “the witness" told the NCAA that Milton Kirk, the assistant high school coach under Lynn Lang at Means’ high school, was upset and might want to talk. The NCAA Enforcement Staff, the report goes on to say, first interviewed Kirk on July 27, 2000. 

There is just one problem with that. The “approved" confidential source was not interviewed until Aug. 13, 2000. 

Secret Witness No. 2 ó the “administrator" ó doesn’t fit either, since the rebuttal shows that source was discussed by the enforcement staff “only to concede that it had delayed for over one year before acting on ... the [Kenny Smith] violations." 

So there are now three confidential sources ó triplets, apparently, since the Committee on Infractions keeps blithely conflating them into one. One wonders where the Enforcement Staff has found so many interchangeable secret witnesses. Cloning, perhaps. 

This could go on, but the point isn’t really to start yet another frenzy about yet another “secret witness." What should be obvious, though, is that the whole concept is badly flawed. It opens a Pandora’s Box of problems for everyone involved. First, the Committee on Infractions is apparently confused (judging by its own language) and may well have assigned more credibility than is warranted to one or the other of the “secret witnesses." The statute of limitations, another critical part of the due process protections that every school deserves, is rendered useless since “confidential" information can be used (at any time) to restart the “violations" clock. In none of these instances does the institution have any right to check the accuracy or veracity of the information; schools simply have to trust that the Enforcement Staff is being honest, which could be a dicey proposition. 

Worse, though, is the effect at the institution itself. Alabama is now faced with at least three secret witnesses ó two of whom are unknown to the institution itself. There is thus no way to check speculation. Innocent parties, whether internal or at rival schools, suddenly become “suspects." It’s a poisonous atmosphere. 

No one is saying that the Enforcement Staff cannot rely on “confidential sources" for informational purposes. That happens in criminal investigations every day. But before that information is presented to a judge and jury, someone has to be willing to state it while on the record. It should be the same in Infractions Committee cases. 

There is no way to know how the Appeals Committee will view the various abuses of the “confidential source" statutes. The Infractions Committee apparently contends it was all “harmless error," though one wonders how many times that “error" can really be “harmless" in such a process. 

The Committee on Appeals needs to take this opportunity to fix this badly broken bylaw, and the NCAA membership needs to consider eliminating it entirely, for all the reasons cited above. That reform might come too late to help Alabama in this case, but no NCAA institution needs to be placed at such risk, with no right to face its accuser, in the future. 

Cecil Hurt is sports editor of The Tuscaloosa News. He can be reached at cecil.hurt@tuscaloosanews.com.

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