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as to how to get to student athletes at other institutions. I did not include this, but the real basic problem that we were having right there at that time in the investigation was trying to get what we thought was apparent information that they had in their files that we did not have.
Dr. Giles' letter referred to hereinabove, dated June 18, 1975, requesting NCAA source information, specifically stated that without such information, President Giles felt that denial of due process would result since the institution would apparently not be able to get all the facts.
It was initially presumed by this attorney, and, I think, by President Giles and the members of the faculty investigating committee, that the NCAA would not make unfounded charges of serious allegations and that, therefore, there must have been other source information in the hands of the NCAA that the university's faculty committee could not uncover.
During the early stages of the university's proceedings, we were advised by outside sources, who were interested in lending assistance to the university, that it would be in the university's best interest to strictly adhere to the procedure demanded by the NCAA; that to do otherwise could be detrimental to the university's best interest.
This statement struck me at the time without a somewhat alarming impression. Although I felt that the university should cooperate with the NCAA by conducting a full and complete investigation and openly reveal all facts found, I still felt that the university should not go about its business with its hat in its hand and its tail tucked between its legs.
Dr. Giles' request for source information and assistance from the NCAA in attempting to discover facts apparently prompted a response from Mr. Warren S. Brown to Dr. Giles in a letter dated June 27, 1975, wherein Dr. Giles was perfunctorily informed that the university's proceedings were not to be "legalistic" in nature.
Since Mississippi State University, à member institution of the NCAA, was bound by a mutual confidentiality regarding these investigations, and since I was employed as the university's attorney throughout these procedures, I am reluctant to go into any details of specific matters involved in the allegations and investigations other than item No. 11 which has already been brought out publicly through the trial of the case of Larry Gillard et al. v. NCAA et al., in the chancery court of Oktibbeha County, Miss., and subsequently appealed by the NCAA to the Supreme Court of Mississippi in case No. 49, 739. I have already discussed certain aspects of item No. 11 of the NCAA's official inquiry dealing with the clothing discount.
In further regards to item No. 11, the NCAA offered no evidence before its infractions committee to support an improper clothing discount in violation of NCAA rules and regulations.
Incidentally, for the record, I was present at the hearing in Kansas City. Mr. Pyles was not.
Also, as brought out in the State court action referred to, item No. 11 did not even state facts, as a charge, that constituted a violation of NCAA rules as defined in its own rules, constitution, or bylaws.
Further, under NCAA procedure, no matters are supposed to be considered by the infractions committee relating to any charges other than those matters presented at the hearing with the university representatives present. At least that was what I was advised and the information we had at Mississippi State.
Notwithstanding the absence of evidence before the infractions committee in Kansas City, to support a violation under item No. 11 of the official inquiry, and in face of a thorough and detailed documented investigation by the faculty committee of the university, specifically finding that no violation occurred and revealing no evidence of a violation under item 11, yet, the NCAA determined that a violation had occurred. This finding, of course, was the basis of the sanction removing the remaining 3 years of Larry Gillard's eligibility to play intercollegiate football. This was subsequently reduced to 1 year by a subcommittee on eligibility.
In addition to the university's faculty committee's investigation and re! on item No. 11 of the NCAA's inquiry, the unrefuted testimony of the various witnesses in the State chancery court case, as reflected by the contents of the record of the trial court in that case, clearly demonstrates, in my strongest personal opinion, an arbitrary denial of the substantive due process rights of Larry Gillard. My views of this are genuinely sincere and strongly held, despite the ultimate decision of the Supreme Court of the State of Mississippi in reversing the lower court's findings. This observation is an expression of my personal opinion and given with deference to the Mississippi Appellate Court.
There were other allegations, aside from item No. 11 in the official inquiry, wherein a complete investigation of the faculty committee revealed no violations but resulted in a finding of violations by the NCAA's Infractions Committee without any substantial proof being presented at the hearing. Again, without getting into any specifics, a review of the transcripts of witnesses before the university's faculty committee and the report of the faculty committee, together with the report of the attorneys for the university, which were all forwarded to the NCAA prior to the hearings on August 25, 1975, will afford data so that the members of this committee can make their own judgements as to ultimate fairness of the procedure and due process afforded. This is not to say that there were not actual violations of NCAA rules and regulations but that additional violations were charged and found which were not supported by any real evidence and, in my honest belief, could not nor should not have resulted in the severity of the sanctions actually applied to the university.
In conclusion, my views are not the results of "sour grapes" or any personal vendetta with the NCAA or any of its staff members. However, from my own direct experiences with the NCAA, I have developed a genuine concern, with a system of procedures that have evolved where an apparent power pocket exists in a vacuum within the NCAA's Enforcement Division, with no effective checks or balances to prevent arbitrary selection of institutions to be investigated or to prevent arbitrary charges, procedures, findings, and sanctions against institutions and individuals. Such actions affect not only
member institutions in a substantially detrimental manner, but, more particularly, the rights and privileges of individuals as well under circumstances where such individuals have no standing before the NCAA to effectively protect their rights, reputations, or interests.
At the present time, member institutions must maintain membership in the NCAA to remain competitive, financially and athletically, despite the so-called “voluntary” aspect.
My opinion—and this is my personal opinion of the resulting effect is that most member institutions bow down without a whimper; those that stand up against the NCAA do so with trembling and continuing fears of retaliatory retribution that can be dispensed without warning by a powerful arm of arbitrary force.
I might add, in conclusion, that certainly anyone would agree that you have got to have an effective regulatory agency to oversee intercollegiate athletics.
I have agreed with statements made from previous testimony to the extent that effective control and supervision of intercollegiate athletics is absolutely essential. In my opinion, this would require, among other things, strengthening and expansion of an investigatory staff so that it could more fully and uniformly investigate alleged violations on a broader scope among member institutions, whether under a restructured NCAA or under such other agency as may be established to take the place of the current NCAA structure. But in any event, such strengthening of the investigatory staff should be accomplished under procedures that give minimal due process rights to those individuals and those institutions involved.
Mr. Chairman, I thank you for the opportunity to come before this subcommittee to give my views.
Mr. SANTINI. Thank you, Mr. Ward.
I am sure the committee appreciates the statements of yourself, and you, Mr. Pyles.
Initially, I would like to direct some questions to you, Coach Tyler.
Did you not discuss with the staff of this subcommittee your having a prepared statement before this subcommittee !
TESTIMONY OF BOB TYLER
Mr. TYLER. Yes, I did. I attempted to prepare a couple of statements to present at this time. I decided that I had some difficulties in preparing the statements. The reasons for that are these.
We have just ended a very difficult 2-year period of probation. I might point out that the 6 months. just prior to probation are much more difficult than the 2 years on probation. Going in is worse than being on. We do not want to go again.
I feel a responsibility to about 300 athletes back on our campus. I feel a responsibility also to this committee to assist in any way I can.
I want to emphasize that we still have to go before the council in connection with section 10 of the manual which refers to overturned injunctions in connection with ineligible players. So, we still have that appearance to make, which I hope will be our final appearance.
So, I felt that any prepared statement on my part might have me reaching for points and emphasizing points in a prepared statement that might not be
Mr. McLain. If I may interrupt you, let me read the last statement of Mr. Ward's testimony. He states:
The resulting effect is that most member institutions bow down without a whimper; those that stand up against the NCAA do so with trembling and continuing fears of retaliatory retribution that can be dispensed without warning by a powerful arm of arbitrary force.
You are talking about going before the council.
Mr. TYLER. Mr. Ward described the feeling that I have had and have now and I am sure that others have had. But I would like to point out this, Mr. McLain.
When we say NCAA, that is, being in fear of NCAA, I am not saying that I fear the council or the members or any of the 18 members of the council. They are from schools and members schools. There are many parts to the NCAA and there are many parts to the central office of NCAA.
I do not know all of the input that goes into the council's decisions. I have great respect for those people. But I fear what could come out of it. I do not know the input.
I am not saying that I specifically fear the judgment and the honesty of those people on the council.
Mr. McLain. Mr. Tyler, you have expressed your fears about the NCAA's process before this committee and your fears with regard to your institution that you represent and the students at that institution.
What about your own career?
Mr. TYLER. Well, it was stated yesterday and it has been stated this morning that careers are affected. I think it would be impossible for me to say now whether my career has been affected or not. I do not know and I do not know that we could ever judge those things down the line.
In careers, such as coaching, which is a public association, things can be damaging. I have naturally worried about that over the past
Mr. McLain. Do you worry about that today because of your appearance before this committee ?
Mr. TYLER. No; I do not worry about that. I have been coaching for 25 years. I certainly was not coaching for the money. I think the reasons I was coaching, even though I am here today by subpoena, I think the reasons I coached would also be the reasons that I would want to cooperate with the committee today.
Mr. McLain. It was stated in the testimony by Mr. Pyles and Mr. Ward that, in fact, the university had an oportunity to appeal the findings or the penalties that were levied by the Infractions Committee to the full NCAA council. You chose not to avail yourselves of that right.
Mr. TYLER. That is correct. Mr. McLain. My question is: Why did you not choose the recourse of appealing those findings?
Mr. TYLER. Because of the mechanics of the appeal structure. It is in the sentence that was in the cover letter that came with the findings and the penalties that we could appeal if we wanted to:
The council may accept the Infractions Committee's findings and penalty and alter either one, or both, and make its own indings and impose a penalty it believes is appropriate.
I did not want to take the chance that our penalty might be expanded or any part of it or the whole penalty.
Mr. McLain. They could have, at the same time, reversed the complete finding; could they not have!
Mr. McLAIN. That is right.
Mr. McLain. You are talking about taking a chance. Did you have advice on what to do in this regard from other parties who were familiar with the procedure?
Mr. TYLER. We had a lot of advice from those who were not familiar and those who were familiar—and this was over a period of many weeks—recommended that we not appeal and that we cooperate and challenge the NCAA in no way.
Mr. McLain. Do you feel that the action that you took in bringing this case before the courts was a challenge to the NCAA?
Mr. TYLER. Yes.
Mr. McLain. Coach Tyler, what do you think the reaction from the NCAA was to that challenge?
Mr. TYLER. I have never really known. I have never been sure that I knew what the reaction was because I do not have a steady line of communication with them or even an infrequent line of communication with them. I have talked with them from time to time, but I am not sure that I ever get the true feeling.
I have had the fear that, based on, I guess, what you would say is grapevine conversation or coaches opinions through the months, that we had challenged them and that was not good.
Mr. McLAIN. Mr. Ward, in his statement--and I will ask any of you gentlemen to address this if you care-mentioned the cooperative principle involved in the enforcement program. As that is stated by the NCAA, it is a process which is to be a cooperative process aimed at finding the truth.
Based upon your experience in the case that you gentlemen are involved with, is that fair and accurate statement of the process ? If it is, why so, and if not, why not?
Mr. TYLER. I think I am speaking to your question. I might mention that the last sentence in the same cover letter on the findings, “The Committee on Infractions extends its appreciation to the executive and athletic administration of Mississippi State University for their cooperation in this matter."
We knew, and all member schools know, that it is supposed to be a cooperative association and a cooperative measure when you are involved in responding to the investigation.
I do not think-we have heard comments about improvement in the association. Probably one of the greatest improvements could be some