THE NCAA GOES ON THE DEFENSE
The first time Brent Clark remembers encountering Walter Byers was in the halls of the National Collegiate Athletic Association offices in Shawnee Mission, Kans. By Clark's definition, Byers is a remote, almost phantom figure there, scurrying up stairways to avoid elevators and seeing almost no one while exercising his immense authority as executive director of the NCAA and its 853 member institutions. Clark was fresh out of law school, a new member of the NCAA investigative staff. He said he introduced himself to Byers. "I said, 'Mr. Byers, I'm Brent Clark.' Byers looked at me and said, 'I know who you are.' That's all he said."
That was 2½ years ago. It is possible that Clark will encounter Byers again this week, or maybe next, in the halls of Congress during the long-awaited hearings into questionable aspects of the NCAA's operations by the House Subcommittee on Oversight and Investigations and that Byers will have much more to say. He knows Clark pretty well. Perhaps better than Clark realizes.
Representative James Santini (D., Nev.), who instigated the hearings, calls Clark "the breakthrough" witness. Prize defector Clark, a full-time employee of the subcommittee since Feb. 1, reportedly will lend the proceedings what one member of the staff calls "an expertise."
Clark, it has been learned from congressional sources, has passed on to his new employers an elaborate scenario of an NCAA enforcement/penalty system corrupted by "vendettas" against schools and coaches. He has described a monolith that runs roughshod over due process and "preys on the weak and vulnerable," one that follows guidelines so vague, against a membership so untrained to combat it, that anybody could be caught sinning. "Give me six weeks," Clark maintained, "and I can put any school in the country on probation."
But "anybody" is not caught, Clark has said. Only the hapless. He has spoken of a "selective enforcement" policy where "sacred cows" (i.e., big-time football and basketball powers whose television presence enriches the NCAA's treasury) were allowed to graze contentedly outside the rules while others were intimidated within them. Fear and retribution, said Clark, are "very real" in the NCAA. Decisions—whom to grab, whom to grant untouchable status—came from "on high," Clark has told investigators for the subcommittee, which is chaired by Representative John Moss (D., Calif.).
And who was on high? Walter Byers. It was on Byers whom Clark came down hardest. He pictured the NCAA as no more than an extension of its executive director's whims and prejudices. He said he did not think Byers an "evil" man, but that the NCAA was "an example of [an] organization that has come under the influence of one man, and the resultant tyranny that can grow out of [such a situation]." The NCAA, Clark said, was Byers' "alter ego."
The subcommittee, however, hasn't built its case solely on Brent Clark's accusations, and sources close to the investigation maintain that a productive set of hearings concerning NCAA misdeeds would have resulted without Clark's input.
Meanwhile, a different picture has emerged—this one of Clark himself—and if nothing else it reveals how ill defined a crusader can be. Last March Clark sought advice from the outside about writing an expose of the NCAA ("Maybe serious, maybe humorous," he said. "There are a lot of funny things that happen"). He said, "I don't need the money, I don't have to work, actually. I just always wanted to write."
A month later he wanted the job as the head of the NCAA's enforcement department. When Warren Brown resigned from that position, Clark asked Byers to consider him. He was discouraged, both by Brown and Byers; they said others were more qualified. Clark was 28, and one of the youngest men on the enforcement staff.
There is evidence, too, that Clark has political ambitions. The term "He has Potomac fever" has been used to describe him in Oklahoma, his native state. He is quoted by a former colleague and friend in Kansas City: "In 10 years I'll be governor of Oklahoma." Clark has admitted as well that the NCAA might use his more than casual concern for the Oklahoma football team to discredit him. Though by his definition Oklahoma would seem to deserve sacred-cow status, being one of the biggest of the moneymaking bigs, it had been severely penalized by the NCAA for cheating during Clark's days as a law student. He said an Oklahoma football coach told him when he took the job in Shawnee Mission, "You've seen the good side of sport—now you're going to see the other side."
As the hearings approached, however, Clark's "expertise"—his intimacy with the NCAA enforcement structure—was hardly that. Of all the myriad and complex NCAA operations, enforcement (catching crooks, judging them) is the most pilloried—and the least understood. Clark's analyses of both the procedure and his role in it, though quite sensational, often were confused and contradicted the interpretation of events at NCAA headquarters.
Recollecting his "only conversation" with Walter Byers, Clark, who now claims he left the NCAA because of growing disillusionment, says he called from Dallas to register concern about the system. Asked if he remembered such an expressed concern, Byers says no, but that when Brown resigned, Clark called and asked to be "considered" for the job as head of the enforcement division. Back to Clark: Is that true? "Yes." Why didn't you say so in the first place? "I thought I did."
At week's end other facets of his "expertise" raised additional questions as to how star a witness Clark will be.
The hearings begin Feb. 27. As with most of their genre, the origin of these smacks of politics. Representative Santini is a basketball fan and an ardent supporter of the Nevada-Las Vegas team. The team is coached by the controversial and oft-investigated Jerry (Tark the Shark) Tarkanian. After Santini was angered by the NCAA's penalties against the UNLV basketball program and Tarkanian, his indignation wound its way to the offices of Representative Moss. A non-fan with 26 years' service in Congress, Moss said he wouldn't touch the issue if it were strictly a matter of Tarkanian and UNLV vs. the NCAA. But several other implications—anti-trust violations, property rights, due process trammeled—apparently piqued Moss' interest.
An angry exchange of correspondence followed between Moss and Byers as to what right the subcommittee had to open to the public the confidential case files of NCAA schools under investigation. Moss gained momentum ("I have rarely seen an investigation so warmly embraced," he wrote Byers). At last count, 220 NCAA case files had been subpoenaed. And with Tarkanian fading into an unaccustomed place out of the limelight, the subcommittee's own five-man investigative team—none of whose members had previous knowledge of NCAA workings—fanned out across the country, visiting nine states, taking testimony from players, coaches, administrators and alumni who, at one time or another, had felt the NCAA's punitive whip, perhaps without fully appreciating who really wields it.
As always, it is in the enforcement area where potential abuse of power makes the NCAA vulnerable. The process from accusation to penalty follows a narrow line between administrative and criminal law. The NCAA clings to the principles of the former (a carefully worked-out "cooperative" arrangement of punitive action) while being attacked, as in this case, on tenets of the latter. It is a headscratcher for the most experienced lawyers, this touchy business of policing oneself.
The enforcement staff (the "cops") is based in the three-story NCAA offices in Shawnee Mission, a suburb of Kansas City, where Byers has been known to use the elevator (Clark's recall notwithstanding, Byers remembers first meeting Clark "on an elevator"). It is an 11-man force now headed up by Assistant Executive Director William B. Hunt, 34, a non-practicing lawyer and former Corpus Christi, Texas sportswriter, and David Berst, 31, a onetime MacMurray (Ill.) College basketball player and coach who was an economics major. Investigators range from an ex-FBI man to an ex-Notre Dame football player. Both Hunt and Berst had been there three years when Brent Clark arrived in July of 1975.
Clark is a slightly built, studiously articulate young (29) man with lank brown hair he parts in the middle and a boyish complexion marred only by a profusion of fine lines around the eyes that give him a look of perpetual alarm. An only child, Clark was raised in Holdenville, Okla. (pop. 6,000). On his desk at the NCAA office he kept a small glass bottle of crude oil, with a label attached, showing a number signifying its grade. He said he had collected it from a well sunk on the Clark ranch.
Although from a non-athletic background, Clark embraced Oklahoma football early. John Keith, the Oklahoma publicist, says Clark "eats, drinks and sleeps Sooner football." While a student, Clark tutored Oklahoma players and still flies to games whenever he has a chance. He also donates to the Oklahoma athletic program. "I sure am a big fan." he says. The fallout has begun in Oklahoma. The Sunday Oklahoman, predicting Clark would be a "blockbuster witness" at the hearings, last week called him a "semi-folk hero."
In Kansas, Clark was admired for his good living. He bought (and still owns) a house there, drove at various times a Mercedes 280SL, a new GM pickup and a Cutlass. He told one friend on the staff that his work there was "a kind of hobby," and when he quit with no job lined up, said, "I'll be able to get by on my $65,000 a year."
Clark was the principal investigator on five cases during his 2½ years with the NCAA: SMU, Grambling, West Texas State, Mississippi and Arkansas. The investigations resulted in two penalties, against SMU and West Texas. SMU was his first case, a review after the school had served two years' probation on previous infractions. While on probation, SMU had extended the contract of Football Coach Dave Smith. Clark said this was interpreted as a "slap in the face" by the NCAA. He said Berst was "stomping on the desk" because Smith had been found guilty of infractions in the previous investigation. He said Berst told him to "zero in" on Assistant Coach Julius Glosson, who would be "easy pickings," being a black coach recruiting ghetto athletes.
Clark said when he finished his investigation "there wasn't much there at all. The case file was filled with unsubstantiated allegations based on flimsy evidence." The indictment he helped present to the Committee on Infractions, which judges and sentences, included allegations that Rod Gerald, a quarterback from Dallas who eventually wound up at Ohio State, was given jewelry, an automobile and a large amount of cash. Those charges were not upheld by the Committee on Infractions.
What was found, according to Clark, was that Glosson merely bought an illegal meal for Gerald and his girl (a check stub was evidence) and paid overnight lodging for both, and that Gerald received $10, a total transaction of about $25. SMU's probation was extended another year, and "the institution was put into a position where it had to fire Smith and his entire staff." Smith and Glosson are now out of football.
Clark said when the pieces of the puzzle began to fit later, he found such retaliatory conduct to be the rule "in case after case after case." He said NCAA policy was for the field investigator "not to worry about the truth, just bring in the information and we'll decide...what to allege." He said, "It didn't matter what went into the O-I [Official Inquiry—a statement of allegations to the school preceding the hearing]...and it really didn't matter what was found. What was important, of course, was what penalty was applied."
He said, "In case after case we were directed...to dig up information which was unsubstantiated, which was alleged, which led to findings, which led to penalties, which were totally and completely motivated by something besides reports of violations." Both Hunt and Berst routinely deny these charges as absurd. Among other flaws in the system Clark had "pieced together":
•There is "no statute of limitations." A school could be under the gun for five years, its case file burgeoning, and then when charges were made, "have only 60 days to respond."
•During an investigation, a school "gets absolutely no cooperation from the NCAA."
•In three cases he investigated, he "had the goods" on violators but did not get a conviction. Sacred cows? "It's true, it's true." He said he had found a "very serious problem at a big school in regard to the use of agents who negotiated contracts, and the hardship draft, and I had a case built—but those folks were too big."
•Investigations were "based on factors...other than those stated in the manual—reports of violations."
•Institutions which raise questions or do not cooperate "to the best interests of Walter Byers and the NCAA tend to suffer in the end."
"The bottom line" in all instances, he said, "is Walter Byers."
At face value, Clark's earnestly delivered declarations against the NCAA are grim indeed. The premise that Byers somehow controls the cases to be judged and the judgment of the cases suggests not only a Machiavellian influence but a sinister coercion of massive proportions—the manipulation of people not only below him in the enforcement process but above him as well. People who have no day-to-day contact with him; who in some cases have never seen the inside of his Shawnee Mission domain; who, in fact, are not even on his staff. Who, in fact, are the enforcement heart of the NCAA.
It is when his arguments reach that extreme that Clark strains credulity. Despite Byers' reputation as an autocratic administrator, the "heart" of the enforcement system is not Byers. The heart is the Committee on Infractions. And who and what is that? Five men, elected to three-year terms, serving without pay to establish the rules and make the judgments on all investigative and punitive actions, the legal checks and balances that make the system tick. The formula has been hammered out over a 20-year period, but, says committee member Dr. William Matthews of the University of Kentucky, "It is a constantly evolving thing," especially now in this age of litigation.
And who are these five men? Currently: Dr. Arthur Reynolds, dean of the graduate school and professor of history at the University of Northern Colorado, the chairman. Dr. Matthews, a professor of law and dean of the Kentucky law school for 16 years. Harry M. Cross, a law professor at the University of Washington and former NCAA president. Dr. Jack Sawyer, a professor of mathematics and computer science at Wake Forest. And Charles Alan Wright, professor of law at the University of Texas, who "wrote the book" on procedure—13 volumes, entitled Federal Practice and Procedures.
As interpreted by Dr. Matthews, here is how the system protects itself against a breakdown of the overwhelming proportions outlined to the congressional sources by Clark:
•Byers has no input at hearings. He isn't even allowed to attend.
•Punishments are determined strictly by the vote of the five men, "batting it around in private" after a hearing. Majority rules.
•Allegations and charges from almost any source can be filed through channels, and Byers is a perfectly legitimate conduit. Byers himself says he "frequently" submits memos when tipped by someone from this or that school. Every memo and nit-picking shred of evidence goes into a "raw file."
•The raw file, however, is never seen by the Committee on Infractions; only "substantial allegations" are allowed to be presented at hearings. "Anonymous witnesses" are never accepted.
•Clark is right that evidence of charges is not provided the institution—for "three good reasons": 1) to allow the institution to investigate itself and thereby increase its chances for a "lesser penalty"; 2) to make it tougher if an institution is tempted to suborn the process; 3) to help the members police the police force—that is, cover the steps taken by the investigators in the field.
•An institution that is "not ready" for a hearing is not confined to the 60-day period between notification and hearing; there is no set period, and extensions are frequently granted.
As for the SMU case, Matthews said he was obliged not to speak specifically, but as a normal procedure the Committee on Infractions leans harder on a school that "does not keep its nose clean" after being previously penalized. At those times, a lesser violation might carry a greater weight than it would if the school had not already been caught cheating. The "flimsy evidence" Clark spoke of, but did not detail besides Glosson's minor transgressions, actually included violations of six NCAA bylaws and one NCAA constitutional law that were found by the Committee on Infractions.
Under such a system, could a "sacred cow" survive? Maybe. Anything is possible. Byers is a powerful figure, not to be underestimated. But to do it, he would not only have to have his investigative staff in his pocket but also at least three members of the Committee on Infractions, and be prepared to re-indoctrinate them every three years as terms expired. As for practical application, there seems to be some confusion as to who is protecting whom. Since Dr. Matthews has been on the committee, his own school, Kentucky, was hit with a stiff two-year probation; Michigan State was penalized when Dr. Jack Fuzak, an associate dean, was president of the NCAA. One more: Bill Hunt, head of the enforcement division, is from SMU.
Is the system foolproof? No, says Dr. Matthews, "but in the cooperative principle of administrative law it is the only way for us to go." To revert to criminal proceedings, and a true "adversary" procedure, he says, would require subpoena powers and endless parades of witnesses and a massive police force 100 times the size of Hunt's group and would result in a climate so unsavory that most institutions would "as soon give up athletics" as operate in it.
Do college athletic officials understand the present system? Not well. It even baffles half the lawyers, says Dr. Matthews. A lawyer from Moss' own staff had to have an NCAA attorney explain the process to him, according to Byers. Ironically, Tarkanian himself, the catalyst of the hearings, is confused about whom to blame. He said the culprit was an enforcement agency "running rampant." He said evidence was improperly found and that sworn affidavits of his innocence were ignored. He professed, however, a "great respect and admiration" for the Committee on Infractions, "honorable men doing a job."
What, then, are the hearings likely to reveal? A lot, probably—at least in the form of charges and countercharges. Witnesses at subcommittee hearings cannot libel or be libeled. A full-scale hissing match is in prospect.
Who is likely to bear the brunt of it? The outer limits of the NCAA's investigative process—Hunt's group and its activities in the field, farthest away from scrutiny, where the lines of truth can blur on both sides. The subcommittee has found "problems of due process" everywhere, problems that make the process "a farce," says one source, and it would be wrong to assume that he is referring entirely to hearsay and sour grapes.
The voices already are warming up. Jim Treat, a Tulsa businessman who claimed the NCAA was "out to get him" in the Oklahoma State probation, has likened Bill Hunt's operation to the "Gestapo." He calls the proceedings a "star chamber," the Council (the NCAA's ruling body) "a circus" and the infractions committee a "Gong Show." Treat was enjoined from contact with the Oklahoma State athletic program by the Big Eight Conference in February 1975, for hiding a prospect. He claims Ron Stratten, one of Hunt's investigators, identified himself as a federal agent to obtain information. Treat said he is scheduled to be heard at the hearings, which may be spread over the next several weeks.
The chorus will grow. One former Long Beach player quoted David Berst as saying, "We're out to get Tarkanian." Another said investigator Lester Burks was interested in information only about illegal recruiting at Las Vegas, not at the other schools the player told him about. An athlete's father in Arkansas said Bill Hunt had telephoned him and said that if the boy "left the state" to go to school he would be investigated.
While his colleagues on the subcommittee prepared for the onslaught, Clark spent last week in Steamboat Springs, Colo. "doing what I always do—skiing." Clark, who said he had planned the vacation months ago, said he was "smiling. I'm happy."
David Berst recalls a last "difficult" time with Clark, when Clark was not smiling. It led, as a last straw, to a recommendation to Byers that Clark be fired. Byers postponed any decision until after Christmas. By then Clark had resigned. Clark was preparing for his weekend's enjoyment then, too, but there had been a court order and certain files had to be packaged and shipped to Washington. Berst asked Clark to come in with him on Sunday to finish the job. Clark told him it was girls' work and to get somebody else. Berst said he wanted Clark, "since you and I started this thing." Clark said, "I won't be there."
The shipment Berst was preparing contained the subpoenaed files for the House subcommittee.
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Brent Clark: a key witness challenges his ex-boss.
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Congressman Santini is a major UNLV backer.
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Chairman Moss takes the hearings very seriously.
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Walter Byers: the top man says he isn't worried.
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Tarkanian's problems started all the questions.
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Ohio State's Gerald was a coveted quarterback.