Imagine, if you will, Congressman, a policed community with a police force where every citizen is in technical violation of the rules. Mr. SANTINI. At all times!

Mr. CLABA. Yes, at all times.

Mr. SANTINI. Would you share the characterization of President Horn of Long Beach State who characterized the rules and interpretations as being written in Bulgarian?

Mr. CLARK. I would agree with that.

Mr. SANTINI. Once you create this kind of, at least exercise of power opportunity, you also would it be fair to conclude create the opportunity for abuse of that power in given instances?

Mr. CLARK. Absolutely.

Mr. SANTINI. A preliminary inquiry, I believe, is simply a form letter to the university and it says "Dear University X" and I am quoting now in part of one of those "Information has been submitted to and developed by the NCAA investigation staff indicating possible violations of NCAA legislation" and then it continues "the purpose of the inquiry is to determine whether there is adequate evidence to warrant an official inquiry" and then it goes on "This letter is merely to acquaint you with the developments to date and to assure you that your institution will be fully advised if there is sufficient evidence to warrant official inquiry."

"Dear College President. If I may characterize it again, please be advised that your university is going to be investigated but don't worry about it. We'll be back in touch with you." Signed "Sincerely." In this instance it was signed, "Warren S. Brown, assistant director." If I, as university president, said "Gee whiz, I am going to have an investigator on campus" and if I go back to NCAA and say "Dear Mr. NCAA, please tell me what you are investigating or what you are doing? What is the response of the NCAA enforcement staff or official representatives to those kinds of inquiries?

Mr. CLARK. The staff provides no guidance whatsoever as to the areas into which they are looking. In fact, it is my opinion that inquiries made for direction are often deemed to be signs of resist

ance

Mr. SANTINI. The temerity to ask?

Mr. CLARK. Yes. Those who ask questions seem to be treated very unkindly.

Mr. SANTINI. Assuming University X now has this letter, what is the time limitation or duration of a preliminary inquiry?

Mr. CLARK. There is absolutely no time limitation. There are instances where it has gone on for years. As a matter of fact, one specific case with which I had some involvement, an institution has been under preliminary investigation for 3 years, I am sure, and they have received no indication that the matters are closed or that they are being pursued. There has been no guidance whatsoever and I am sure they are afraid to ask.

Mr. SANTINI. Mr. Clark, can you describe for the committee members what the practical impact that you witnessed and that you experienced on the university after having received one of these preliminary inquiries? I do not think that is apparent on the pieces of paper.

Mr. CLARK. In case after case, it was demonstrated to me that institutions are in a quandary about what that piece of paper means. They do not know where to go for information because the NCAA stonewalls it. They are left to float in a sea of interpretations, insinuations and regulations with no direction whatsoever.

Mr. SANTINI. Is this part of the process that Coach Al McGuire described as instituting a Gestapo-like fear into the institutions at the colleges and universities of this country which come under this scrutiny?

Mr. CLARK. I would imagine that is what he was referring to, yes. Mr. SANTINI. All right.

So, for 2 or 3 months to 2 or 3 years you have a university that has this black pall of some sort of investigation being conducted in its midst about which it can do nothing in terms of cooperative effort of any sort. There is no way at this point that the university could cooperate, is there?

Mr. CLARK. That is correct.

Mr. SANTINI. The next stage is the official inquiry stage. Would you describe that document?

Mr. CLARK. That document amounts to a series of allegations. The wording is characteristically "It is alleged that" on a certain date an event transpired and it goes on to cite that event and list the applicable rule in the constitution or bylaws that apply in that instance.

Mr. SANTINI. Let's cite for illustrative purposes "It is alleged that player A was taken out and have a free dinner on such and such a date given by such and such a person". Would that be the kind of allegation that would be set up?

Mr. CLARK. That is correct.

Mr. LUKEN. Will the gentleman yield?

Mr. SANTINI. In just a moment.

Does the official inquiry identify who has made the accusation of where this evidence came from?

Mr. CLARK. It does not.

Mr. SANTINI. What is the university instructed to do after it gets this information in terms to response to that kind of vague general charge from an unknown accuser?

Mr. CLARK. The institution is charged with the obligation to thoroughly and completely investigate all the charges contained in the OI.

Mr. SANTINI. But they are not telling you is accusing you?

Mr. CLARK. That is right.

Mr. LUKEN. I recognize, Mr. Santini, that we have the problem here that we don't want to get into individual cases and publish any unfounded, undocumented allegations. But, is there any possibility that we could get a sample charge of an actual charge that has already been published?

Mr. SANTINI. I think that is an excellent suggestion. I think any number of cases would provide the general kind of official inquiry allegation statements. Could we leave the record open?

Mr. Moss. With the next witness. As we move along with additional witnesses, all of this information that the gentleman is concerned about will be developed on the record.

Mr. LUKEN. We will get specific examples?

Mr. Moss. Yes.

Mr. LUKEN. Not forms, but an actual case?

Mr. Moss. I announced this morning that we will have over 40 witnesses, probably closer to 50 witnesses before we finally wrap up these hearings. I think every aspect of the enforcement operation will be on this record.

Mr. LUKEN. The sooner we can get those particular documents, the better. It would help our understanding.

Mr. Moss. The gentleman's time has expired.

Mr. SANTINI. I would seek unanimous consent for the purpose of offering two documents in connection with this phase of my inquiry. Mr. Moss. Is there objection? The gentleman is recognized to offer the documents.

Mr. SANTINI. I would ask staff to furnish to the witness a copy of a memorandum dated Apr. 16, 1976 and it is directed to David Berst and the subject is case No. 520. [See p. 32.]

Mr. SANTINI. Does the witness recognize that document?

Mr. CLARK, Yes: I do.

Mr. SANTINI. What is the basis of that recognition?

Mr. CLARK. This memorandum was given to me by David Berst. If you notice in the upper left-hand corner of the document is a notation in David Berst's handwriting. "Jim, then Brent, especially number six, case file, David Berst, 4/16/76." This memorandum was presented to me with regard to actions which apparently Mr. Brown wished to take against Mississippi State University.

Mr. SANTINI. What is the background that led to the submission of this document to you, and what did you do in response to it?

Mr. CLARK. I believe that Mr. Brown had testified in a court case regarding student athlete Larry Gillard. When he returned, he was extremely upset with that particular procedure in the State of Mississippi, with the result that this document apparently was drafted and presented to me at the time I was looking into the University of Mississippi.

Of course, when I received this document, it was clear to me, especially with item No. 6 noted, that I was to start investigating Mississippi State again.

Mr. SANTINI. What was the stage of the Mississippi State investigation at this time?

Mr. CLARK. Mississippi State had just suffered a 2-year probation, and the only remaining aspect of the case was the eligibility question of student athlete Larry Gillard. That young man had taken steps through the courts to adjudicate his declaration of ineligibility with the resultant fallout.

Mr. SANTINI. Had not the university already had a punishment imposed upon it at this time?

Mr. CLARK. Yes; they had. They were under a 2-year probation.

Mr. SANTINI. This document purports to recommend that additional investigations be pursued. I believe No. 3 says:

I believe we should allege, once this is over or prior to that time that Tyler's guaranteeing the costs incurred in this suit by Gillard as his "next friend" is per se a violation of NCAA Constitution 3-1 and Case No. 40.

I believe we should allege once this is over that the University's bringing suit against the Association in conjunction with Gillard is per se acting contrary to the provisions of Constitution 4-2-(a) inasmuch as they failed to exhaust their internal remedies through the appeal process on either the Committee on Infractions' findings or the eligibility appeal for restoration.

I don't understand. I thought the university had had a hearing, and that the punishment had been imposed. This says that they should go and allege some more against them. How is that possible? What are the circumstances of that?

Mr. CLARK. This is reflective of how allegations are written in many cases. Apparently, Mr. Brown had very strong feelings about Mississippi State University with the result that staff was directed to look into these particular matters. In fact, he is not asking that we investigate it, he is asking that we allege it as violations.

Mr. SANTINI. So you are being told to go out and allege some more violations to get to a university because it had the temerity to question, through one of its players in court, the correctness of a finding of guilt already imposed?

Mr. CLARK. That was my understanding at the time. Yes.
Mr. SANTINI. In addition it says:

Finally, I believe we should pay strict attention to the penalties imposed upon the university and even do some checking on the institution during the course of its probationary period.

Mr. CLARK. That is correct.

Mr. SANTINI. So also is there the prospect that they can increase the penalty after it has been previously imposed?

Mr. CLARK. The idea here, I believe, was to utilize the review procedure of the Mississippi State probation to extend the penalty on Mississippi State such as was the case I outlined with Southern Methodist University. In other words, to use the review procedure to punish the institution again.

Mr. SANTINI. And the university could receive additional punishment under their review procedure?

Mr. CLARK. Their program is in effect investigated again through the review procedure. I gathered that any information I could generate indicating violation would be well received by my superiors. Mr. SANTINI. I would like to have that document admitted, Mr. Chairman.

Mr. Moss. By unanimous consent, it is inserted and hearing no objection, by order of the committee, it will be inserted.

[The memorandum referred to follows:]

course, by myself and other members of the staff that at one time Mr. Byers instructed two assistant executive directors, who had offices on the parking lot side of the building, to take the names of staff members who were tardy and to report those to him.

This is reflective of the very strict code of conduct contained in that document and as well, of course, there was no cigarette smoking in the building, no coffee breaks and no food at the desks.

Mr. MCLAIN. Does it deal with the dress code?

Mr. CLARK. Yes.

Mr. McLAIN. Does it deal with the vacation policy.

Mr. CLARK. Yes, it does.

Mr. McLAIN. Does it deal with overtime pay?

Mr. CLARK. Yes, it does.

Mr. MCLAIN. Mr. Clark, if you had that document before you today and were asked if you had any changes to make in the operating procedures, would your answer to that be something to the effect that, "I have no suggestions at this time to make regarding alterations in operating procedures"?

Mr. CLARK. I believe there are a lot of changes I would make, if I were given the opportunity to express them.

Mr. McLAIN. In the operating procedures?

Mr. CLARK. Well, no, those particular aspects are not of a major concern to me. As a nonsmoker, and as a nondrinker, those kinds of strictures did not influence my day-to-day functioning. They were of little or no concern to me.

Mr. MCLAIN. At any time

Mr. LENT. Mr. Chairman, I would like to interrupt.

Mr. Moss. You certainly may.

Mr. LENT. Minority counsel has handed me another document which pertains to the call by the director of the enforcement division, William B. Hunt, for this memorandum.

Inasmuch as the chairman mentioned earlier that he would have that in evidence as well as the memorandum, and inasmuch as it has now been placed in my hands, I would ask the clerk if she has a May 23, 1977, staff meeting memorandum signed by William B. Hunt. Mr. Moss. We do not have such a document.

Mr. SANTINI. If the gentleman will yield, and if we are being introduced to a pattern of surprise documents

Mr. Moss. The chair will make a ruling on that now. The chair will say that any document that is going to be used in this hearing is going to be placed in the hands of the chair and the clerk before the hearings commence or it will not be considered until a subsequent time. The chair is not going to have the direction taken over by anyone other than the chair himself.

That has been delegated to me by the members of the subcommittee and until they revoke that delegation, I intend to direct the inquiries of this committee. It is the responsibility of the chair and it derives from the majority of the committee and the chair will conduct himself along those lines. So if you want to give me copies of documents, then we will look at them. But we will not have them thrown in here as diversionary.