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individuals are not given an opportunity or time to prepare a response and defense; and they are never afforded the opportunity or right on their own to appear; to be confronted by and to examine accusing witnesses; or to present evidence in their own behalf. In short, the nonmember chargee is afforded no opportunity or right, on his own, of a full, fair hearing regarding any accusations made against him. Therefore, these nonmember persons are denied even the elemental constitutional protections.
The NCAA, by coordinating and overseeing intercollegiate athletics, is, in fact, performing a traditional governmental function. This is from Parish v. NCAA, CA 5, 1975, 506 F. 2d 1028. The NCAA, a private association composed of public and private institutions, is thus regulating and controlling the programs of public institutions and the lives of employees, students, and unconnected private citizens, imposing restrictions, conducting investigations, and setting out severe punitive sanctions without being subjected to the traditional constitutional restraints of the 1st, 5th, and 14th amendments. This is from Howard University v. NCAA, CA D.C., 1975, 510 F. 2d. 213.
I recommend to my associate, officials of the institution, and the private citizens involved that the customary judiciary procedures to be initiated to obtain the truth of the charges, and to protect the properties, liberty, interests, and civil rights of all concerned. My recommendations were not followed.
The president of MSU elected to utilize what was termed the "administrative" procedures of the NCAA. A committee of academicians from the MSU faculty was appointed. The committee gathered evidence in the form of sworn testimony, affidavits, and documents. No evidence, other than a few minor technical violations, was presented to substantiate any of the charges and specifications. Representatives of MSU appeared before the NCAA Infractions Committee. I was not present, but I am informed that no evidence was presented before this body by the NCAA as the charging party. The sworn evidence gathered by the MSU committee was completely disregarded, and the result was that the institution was put on probation and otherwise punished. Private citizens with no official connection with the NCAA were subjected to severe punitive sanctions. The threat of additional sanctions by the NCAA is still a possibility.
Based upon my experience and research in this case, I am convinced that the Congress should enact legislation:
One, which establishes substantive Federal rights and duties of: (a) the NCAA; (b) the institutions which engage in intercollegiate athletic programs; (c) coaches and staff personnel; (d) studentathletes; and (e) private citizens who may become involved directly or indirectly with such programs.
Two, which governs the conduct of intercollegiate athletic contests, including general guidelines pertaining to the recruiting, eligibility of, and financial aid to student-athletes participating therein.
Three, which pertains to the administration of the provisions of the new act by the creation of the National Intercollegiate Athletic Board. Such an agency should have the power to investigate any controversy which might arise under the act; provide for an appropriate adversary hearing upon due notice; enter such orders necessary to prevent any person from engaging in conduct proscribed by the act. Procedures should be prescribed which fully comply with all appropriate fundamental constitutional protections. Any person aggrieved by a final order of the agency should be accorded the right to obtain a review of such order in any court of competent jurisdiction, which would be required to adjudicate the issues in accordance with the Federal statute.
Mr. SANTINI. Thank you, Mr. Pyles.
TESTIMONY OF ERWIN C. WARD
Mr. WARD. Mr. Chairman and members of the committee, I am Erwin C. Ward. I am an attorney from Jackson, Miss.
Briefly my background is this. I was born in Starkville, Miss., on October 7, 1933. I was educated at Mississippi State and received a bachelor of science degree. There, I participated in intercollegiate athletics.
I played under such coaches as Darrell Royal, the coach of Texas, and Murray Warmuth, who subsequently coached at Minnesota. I played under Charlie Caldwell, the coach at Princeton in an all-state game, although I must admit that my name never got on the sport pages until I got involved in this case.
I served 39 months active duty as an officer in the U.S. Marine Corps. I received my LL.B degree from the University of Mississippi in June 1961.
I am a member of the American Bar Association, the Mississippi State Bar Association, and the Hinds County-Jackson, Miss., Bar Association.
I have served as past president of that bar association and am a member of the executive committee of that bar's association.
I have been a partner in the law firm of Stennett, Wilkinson & Ward in Jackson, Miss., since 1962.
Mr. SANTINI. Without objection, your biographical data will be inserted in the record at this point [The material referred to follows:] ERWIN C. WARD BIOGRAPHICAL DATA ON EDUCATIONAL, MILITARY,
AND PROFESSIONAL BACKGROUND
Received bachelor of science degree, Mississippi State University, and participated in intercollegiate athletics (football).
Served 39 months acti duty, as an officer with the U.S. Marine Corps and 5 years Active Reserve, 1956-65, attaining rank of major upon transfer to Inactive Reserve.
Received LL.B. degree from the University of Mississippi, June 1961.
Member of American Bar Association, Mississippi State Bar Association, and Hinds County-Jackson, Miss., Bar Association.
Past president of Hinds County-Jackson, Miss., Bar Association, 1973–74, and member of bar association's executive committee, 1972–75.
A partner in the law firm of Stennett, Wilkinson & Ward, Jackson, Miss., since 1962.
Mr. WARD. I am an attorney employed by Mississippi State University during its investigation by the NCAA and hearings before the NCAA's Infractions Committee in Kansas City, Mo.
However, my statements and testimony before the Subcommittee of Oversight and Investigations of the U.S. House of Representatives are given by me as an individual, and not in the capacity of a representative of Mississippi State University. I am appearing in response to a subpena.
As I am sure this subcommittee is aware, the NCAA requires confidentiality in regard to the proceedings between itself and member institutions. However, since every aspect of the charge dealing with an alleged clothing discount to a Mississippi State University studentathletewhich charge is identified as item No. 11 of the NCAA's official inquiry–has been publicly aired through court proceedings in the State of Mississippi, there is no restriction on my testimony about this matter, that is, as it relates to the confidentiality between the member institution and the NCAA.
The statements contained herein are general observations, opinions, and citations of facts that may be helpful to the subcommittee, but which do not, in my opinion, violate the attorney-client relationship or transgress the lines of confidentiality between the NCAA and Mississippi State University.
As stated previously, I am a practicing attorney in Jackson, Miss. I was employed by Mississippi State University shortly after the institution received notice of the NCAA's preliminary inquiry, dated March 6, 1975.
Dixon L. Pyles, Esq., also a practicing attorney in Jackson, Miss., was associated with me in representing the university in this matter.
My initial participation began when I was requested by university officials to come to the university to meet Mr. Jim Delaney, a NCAA investigator, who had requested to interview certain student-athletes and university staff members on campus.
I was present during all of the oncampus interviews, including Mr. Delany's interview with student-athlete Larry Gillard. During this interview with Larry Gillard, the NCAA investigator questioned him regarding the purchasing of clothing at Howard's clothing store in Okolona, Miss. Larry Gillard stated, in effect, that he did not know whether he had gotten a discount or not, but assumed that if he did, he paid what he was supposed to pay. He further stated that he paid cash on each of the two occasions that he purchased clothing there, and that on each occasion he purchased one pair of trousers and one shirt.
Mr. Delaney then stated, in effect, that he had already interviewed Mr. Howard Miskelly, owner of the clothing store; that Mr. Miskelly had already admitted giving a one-third discount to Larry Gillard on each occasion. This statement by the NCAA investigator to Larry Gillard left the distinct impression or the implication that Mr. Miskelly had already made an admission of violating NCAA rules by giving an improper discount. Larry Gillard had no response to Mr. Delaney's statement other than he trusted whatever Mr. Howard Miskelly said to be the truth since he had known him for a number
At the time of this interview with Larry Gillard by the NCAA investigator, I had no knowledge of the NCAA's interview with Mr. Miskelly or what Mr. Miskelly had related to Mr. Delaney previously. Later, through subsequent sworn testimony of Mr. Miskelly, the implied admission of a one-third discount on clothing sold to Larry Gillard was repudiated, and Mr. Miskelly specifically testified under oath that he made no such statements to any NCAA investigator, including Mr. Delaney.
Over 1 year later, during the trial of the case of Larry Gillard et al. v. NCAA et al., in the chancery court of Oktibbeha County, Miss., Mr. Warren S. Brown, director of the NCAA's Enforcement Division, testified under oath that the only sources of information available to Mr. Delaney during his investigation of the alleged clothing discount violation under item No. 11 of the official inquiry, were statements obtained through interviews with Larry Gillard, Dr. William L. Giles, president of Mississippi State University, and Mr. Howard Miskelly. Since I was present with Larry Gillard and with Dr. Giles during the only interviews that each had with Mr. Delaney, I can personally state that no information or evidence was received by the investigator from these two sources to support a violation of an improper clothing discount. In view of Mr. Miskelly's testimony under oath that he had not related such information to Mr. Delaney on the one occasion that Mr. Delaney interviewed him, and that he only afford Larry Gillard a 20-percent discount on the purchase, being the same afforded to all college students in his clothing business, this leaves one wondering upon what basis this charge under item No. 11 of the inquiry was brought.
Chronologically, the next occasion that I had to talk with Mr. Jim Delaney, the NCAA investigator, was in my office in Jackson, Miss., during the latter part of April or early May of 1975. I do not recall the reason why Mr. Delaney was in Jackson at that time, but during this informal meeting he informed me that a supplemental charge was being added to the original allegations against Mississippi State University. Mr. Delaney then briefly discussed, among other things, his own personal ambitions and goals within the NCAA's Enforcement Division—a fact which was rather surprising to me at the time.
He made a statement to the effect that he had—and I am not purporting to quote Mr. Delaney exactly, but this was fairly close to the statement, as I recall it—that he had practically the sole power and authority to make or break a member institution's athletic program. Mr. Delaney continued in the general conversation, stating in effect that he was an effective investigator; that there had been other field investigators in the NCAA who performed with less than satisfactory results, but that he felt that he was establishing a good record in making charges stick against institutions that he investigated.
The next sequence of events in my participation as attorney for Mississippi State University in the NCAA investigation was to meet with the university officials to review the allegations contained in the NCAA's official inquiry, forwarded to Mississippi State University under cover letter from Mr. Warren S. Brown, dated April 30, 1975.
In response to the said letter of April 30 and the official inquiry, Dr. William L. Giles, president of the university, appointed a faculty factfinding committee on May 7, 1975. Appointed to this committee were Dr. Walter K. Porter, Jr., associate director of the agricultural and forestry experiment station, as chairman; Dr. Barry F. Box, associate dean for instruction in the college of education; Prof. James E. Hill, head of the department of poultry; and Dr. George L. Switzer, professor of forestry. Dr. Giles directed Dr. Porter and his committee members to make a thorough, complete, and objective investigation into all items of inquiry and to report back to the President with recommendations of appropriate action on any violations that the committee might find.
I, along with Mr. Dixon Pyles, was asked to work closely with the committee in assisting with questioning all parties and material witnesses relating to the various allegations. In response to the directions of the President, this committee conducted detailed and thorough investigations with interviews of all witnesses and parties involved in each and every allegation. Testimony was taken before court reporters and a voluminous, detailed report was prepared by the committee with attached affidavits and testimony of each and every person who had any knowledge of the events involved in the various allegations.
During the course of the investigation by the university's faculty committee, it began to become apparent that there was no evidence whatsoever to support several of the more serious violations alleged.
Regarding several of these more serious allegations, student-athletes from other institutions were interviewed with detailed questions relating to every aspect of the specific alleged violations involved. Each staff member-coach-or representative of athletic interest alleged to have been involved was questioned on the record. After it became apparent that no evidence could be found to support a number of these allegations, the faculty committee members and President William L. Giles concluded that either these particular charges were totally unfounded or that the NCAA had in its files, information and leads unobtainable by the university's faculty committee, after careful and detailed investigation of every source known.
In view of the stated "cooperative spirit” required by the NCAA of its member institutions in such investigations, and in view of the obligation upon the institution to make a thorough and detailed investigation into all allegations, President Giles made a written request, by letter dated June 18, 1975, to Mr. Warren S. Brown, the then-director of the NCAA Enforcement Division, with copies to each member of the NCAA's Infractions Committee, asking for source information and assistance from the NCAA so that all facts and leads could be evaluated by the university's committee. This request was officially denied by the NCAA as evidenced by the response in a letter from Mr. Warren S. Brown to Dr. Giles, dated July 2, 1975. A brief extension of time was granted by the NCAA for the institution to complete its investigation, but at this point in the university's investigation, it became more and more frustrating and apparent that the NCAA did not intend to cooperate, leaving the university's faculty committee at a complete loss as to the basis of certain charges.
Now briefly leaving the statement a second, I do want to say that the NCAA did cooperate in one regard. It gave us some suggestions