By B. David Ridpath, Ed.D., Associate Professor and Kahandas Nandola Professor of Sport Management, Ohio UniversityCollege of Business
In the American legal and justice system, it can be controversial to gather information from any source under the guise of a deal. What I am talking about is the concept of immunity from prosecution or cutting a deal to get a reduced punishment for a person or person(s) so prosecutors and investigators can get to the information they need and/or cannot find out during a normal course of an investigation. Numerous criminal and civil cases have been cracked and convictions handed down based on testimony from individuals who brokered a better deal for themselves in exchange for information. Jailhouse informants are ubiquitous and their motives are clear-they want a better situation for giving up important information.
Clearly the concept of immunity and deal making in our traditional legal and justice system is not unusual. It can be an effective tool at getting to the bottom of an issue if the other existing evidence does not get you to the truth. If someone has a chance to better their situation, most would take it, but the credibility and efficacy of the individual giving information has to be taken into account. Oftentimes it might be an informant who is placing blame on someone else to cover for their own indiscretions. Oftentimes it is not, but there has to be a balancing test before using the testimony of one person(s) against another especially if they have a vested self-interest in saving themselves even at the expense of others.
The NCAA Concept of Limited Immunity
The NCAA enforcement and infractions process also has a very powerful, but sometimes dangerous tool at their disposal that is called “Limited Immunity.” Essentially limited immunity in NCAA parlance works the same way as the concept of immunity in the criminal justice system. It is important to state that the NCAA is not a state actor and its system of justice does not have to provide due process protections like a jury trial, right to confront accusers, access to information etc. that is available in the standard judicial process and does not expressly identify a burden of persuasion as typically seen in the traditional legal model.” However, the use of limited immunity protections does mirror the traditional justice system in that it can lessen and/or eliminate penalties for those who cooperate.
Limited immunity is currently defined and covered by NCAA Bylaw 19.3.7a and 19.3.7c for athletes and institutional employees, but only when particular circumstances apply. Specifically, the bylaw states, “at the request of the enforcement staff, the Committee on Infractions(COI) may grant limited immunity to a student-athlete, prospective student-athlete or institutional staff member when such an individual otherwise might be declared ineligible for intercollegiate competition based on information reported to the enforcement staff by the individual or a third-party associated with the individual. Such immunity shall not apply to the individual’s involvement in violations of NCAA legislation not reported or to future involvement in violations of NCAA legislation by the individual or to any action taken by an institution. In any case, such immunity shall not be granted unless the relevant information would not otherwise be available to the enforcement staff.” Some of the more notable cases of limited immunity in NCAA cases include the notorious Nevin Shapiro debacle at the University of Miami and the current ongoing University of Mississippi major infractions case.
It has become, mostly in major college sports, that academic integrity, graduation rates, and even the background of the athlete does not matter much if it means a chance at winning a game, selling another ticket, getting a better television contract, and bringing in the ever desired “exposure” to a campus. In most cases, due to these competing phenomena the reward often outweighs the risk and coaches and others stretch or outright break the rules. Yet many involved in these infractions are used by the NCAA to punish others despite the motivations of the one getting immunity.
The lines can be very blurred and limited immunity can also be a detriment if the motives of the one seeking protection are not fully evaluated. In the case of athletes, it is likely used to save eligibility which is understandable, but before taking the information it is incumbent on the NCAA to test it and evaluate it thoroughly against other evidence and testimony already investigated. Limited immunity is not supposed to be used to get an infractions case to where one may want it to go, regardless of the truth or credibility of the one possessing immunity. It is supposed to be about the facts.
In many cases, I believe that the NCAA has used limited immunity situationally to craft a narrative that delivers the most desired outcome at the time and not to get at the truth. That outcome can be influenced by the press, outsiders, association priorities and simply if members of the NCAA enforcement staff and Committee on Infractions don’t like someone. It really is that petty most of the time how enforcement and the COI work, and that is a sad indictment of the process. It is reasons like this why the system is continually battling legal efforts and potential government intervention to change the process.
Donnie Tyndall
In a recent NCAA infractions case that has been widely reported in the media, Donnie Tyndall the former University of Tennessee head men’s basketball coach was recently sanctioned for violations at his previous employer, the University of Southern Mississippi where he coached from 2012-14. The NCAA found that Tyndall was responsible for and knew or should have known about several major NCAA violations, including being given an almost unprecedented 10-year show cause penalty which essentially renders him unemployable forever in major college basketball. This type of punishment cannot be taken lightly when a person’s career and reputation get ruined for a lifetime.
The NCAA stated in its April 2016 public infractions report that Tyndall “acted unethically and failed to promote an atmosphere for compliance when he directed his staff to engage in academic misconduct” while coaching at Southern Miss. As a result of the allegations and later “findings of fact” according the NCAA, Southern Mississippi self-imposed a two-year postseason ban that took effect in 2015. The program is under probation until 2020 and will lose four more scholarships over the next three years. The show-cause penalty for coach Tyndall goes until April 7, 2026. Even if he is offered another job, most likely after that far off date, he must sit out 50 percent of his team’s games the first season. This is a career killer and a reputation crusher to say the least for Tyndall as was demonstrated by Tyndall being fired after only season at Tennessee due to these findings at another institution.
The Accuser
The concern that many people have about the NCAA enforcement and infractions process goes well beyond Donnie Tyndall. It concerns fundamental fairness and due process. Limited immunity if abused, can be used in the wrong way to finish a case without any basic regard to fundamental objectivity deserved by all who have their reputations and careers threatened. This does not mean that limited immunity has not been effective at times, but in many cases it can be abused and it certainly appears to be at least used questionably in the Tyndall case.
The NCAA standard for major infractions is findings that one that a reasonable person would find in the conduct of serious affairs. That means the truth and facts are paramount. At this juncture in the Tyndall case, most of the charges against Tyndall primarily revolve around the protected testimony of Adam Howard, a former assistant coach at Tennessee and USM. Howard was granted limited immunity from the NCAA and the enforcement staff and COI largely buttressed their decision making against Tyndall based on the statements of Howard. According to Tyndall’s attorney, Donald Jackson, these findings stuck despite 41 other witnesses largely discrediting the statements of Howard.
Having findings corroborated by only one witness under one of the NCAA’s most controversial measures, which in turn protected Howard from direct action from the NCAA, while implicating Tyndall in most of the violations doesn’t pass the smell test. Where credibility is concerned Howard falls flat. He had already been exposed by the NCAA as a liar because he previously provided less than truthful information and attempted to convince others not to cooperate with the investigation prior to being granted immunity. Jackson believes, and I concur, that this violates the NCAA’s terms of limited immunity because information could have been acquired through other means and Howard’s credibility is highly questionable thus should not be allowed to be used against his client. 41 out of 42 witnesses contradicting Howard certainly appears to show information can be gathered without granting immunity to Howard. Regardless of the real motivations, this appears to be targeting of Tyndall and a steering of the narrative to a certain conclusion.
Howard’s motivations to give the NCAA information can best be described as self-serving. His credibility is questionable, he has lied before to the NCAA, and many witnesses contradict him. This is not a person to give immunity to, nor candidly give any consideration at all. Coach Howard appears to want to save himself to the detriment of others. While ultimately that may not be accurate, the conflict and credibility issues he presents are too large to ignore. While immunity can be a good thing, the Tyndall case demonstrates the current vetting process is inadequate. The COI should have never granted limited immunity to Howard. Just like the rest of the NCAA enforcement and infractions process, the concept of limited immunity, like the former use of “secret witnesses” which is no longer allowed needs to be revisited and overhauled. Most of all Limited Immunity needs to be used in the most extreme situations and from the most credible sources. The Tyndall case is not one of those cases.
