WRANGLING WITH CONFIDENTIALITY AND CREDIBILITY
Aug 23, 2002
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.