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the head coach responsible who had not been involved and the NCAA did not ask them to do anything about the head coach. They were so upset about this deal that they terminated the coaching staff.
I asked the chairman of the board of trustees what he thought about it. The term they used was this. They said they thought they had been treated "fairly." All of them said they thought SMU had been treated fairly; the general counsel, the president, and the chairman of the board.
You, Mr. Clark, investigated SMU. The question I want to know is this.
Did any of the university officials at that time say anything differently?
Mr. CLARK. Yes. I did investigate SMU. I am the person who determined that Coach Glossen had lied about the purchase of meals, so I had firsthand information about that incident. I do not defend lying or breaking the rules, not even the technical ones. I think it is reprehensible.
The problem I had is with the genesis of this case, Congressman. It was not on the basis of any information we had that Coach Glossen had done anything that I was assigned to look into the institution.
I want to expand a little further on the second part of your question. If you would, please state it again.
Mr. COLLINS. What I want to know is this. Have any of these people I have named: the athletic director, chairman of the board, the general counsel, and the president ever expressed anything to you, other than what they have expressed to me, that they thought they were treated fairly in spite of the fact that SMU had gotten stuck twice?
Mr. CLARK. Yes, I see.
The attorney who investigated the case for SMU was John McEhlaney from a firm in Dallas. Apparently you did not speak with him, but he made numerous requests for information from the NCAA to help him find out what the truth was. All those requests for information were denied, so I think Mr. McEhlaney might confirm that aspect.
In addition to that, my prepared testimony points out that Dr. Zumberge, at the time of the hearing indicated that he intended to take steps to insure that he would never come before the NCAA again.
So what their position is now is entirely consistent with what he said at that time.
Mr. COLLINS. What did Dr. Zumberge say?
Mr. CLARK. Dr. Zumberge, at the time of the hearing, pledged cooperation with the NCAA and pledged to take steps to see that his institution never again
Mr. COLLINS. He was the one who moved and fired the head coach. He moved strongly on it.
Of course, Dr. Žumberge—the thing you hit in this investigation when you came out and said, when you found this individual had lied in his testimony, that from the investigative viewpoint, when you found a person in the position of a lie, that was indefensible.
Mr. CLARK. Yes; it is indefensible.
Mr. COLLINS. The other thing is this. I am an alumni who reads the sport pages. I was not on the executive committee that was in on this hearing, but the university officials said that if colleges do not have a NCAA, then how could collegiate athletics live!
In other words, it is absolutely necessary.
I was surprised that they said that because after what they have gone through, it is really something. It has a tremendous impact on the college in terms of its recruiting and in many ways when you suffer these reprimands.
But they still thought that the NCAA was necessary.
Mr. CLARK. No; I do not. I think that a series of rules and a conformance to those rules is an absolute necessity. I am in agreement with member institutions of the NCAA in that regard.
What I am suggesting is that there needs to be a good deal of fine tuning of the enforcement machinery to restore a sense of dignity for institutions and athletes and to restore their respect for the NCAA.
I believe that the NCAA can function more effectively by adopting a series of changes in its procedures.
Mr. COLLINS. Thank you, Mr. Chairman.
Mr. Moss. The Chair is going to recognize Mr. Wunder, counsel for the minority.
Mr. WUNDER. Thank you, Mr. Chairman.
Mr. Clark, in your statement on page 3, you made reference to derogatory remarks made to the committee on infraction members about institutional representatives. Then you referred to a remark made by David Berst that Jerry Tarkanian is "the one that looks like a rug salesman.”
To whom did he say that!
Mr. CLARK. He said this in the presence of the committee on infractions and staff prior to the time
Mr. WUNDER. To whom did he say this?
Mr. CLARK. I do not know to whom he was saying it directly. He said that Coach Tarkanian could be identified as "the one that looks
salesman.' Mr. WUNDER. So you do not know of your own knowledge that he made this statement to the committee on infractions; is that correct?
Mr. CLARK. No. I heard the statement in the presence of the committee. I, and others, overheard it.
Mr. WUNDER. That is not the question, Mr. Clark.
Did Mr. Berst make that statement to the committee on infractions or any member individually!
Mr. CLARK. I do not know.
Mr. WUNDER. On page 4 of your prepared testimony, you indicate that after the infractions committee concludes its hearing that "NCAA staff and committee members commonly adjourn to a hotel room to discuss the case in earnest.”
like a rug
I would like for you to identify those instances and the time when these types of ex parte meetings occurred and in which cases were they and the names of the individuals on the staff that were involved.
Mr. CLARK. I was involved in seven cases. The first two cases I was involved in were the Southern Methodist University and West Texas State University. Those two cases were heard in San Diego, Calif., at the Hotel Del Coronado.
After hearings on those cases, the committee and staff discussed the cases in the hotel rooms of the committee members. We had dinner the very evening after the hearing of these two cases at the restaurant in the hotel. I remember it very, very well. It was a splendid dinner.
Mr. WUNDER. I am not asking about the dinner. Who were the persons involved?
Mr. CLARK. It was the five men who sit on the committee on infractions, Mr. Warren Brown, myself, and Mr. David Berst.
Mr. WUNDER. The entire committee, Warren Brown, David Berst, and yourself?
Mr. CLARK. Yes.
During the course of those conversations, you did, in fact, discuss the merits of the case, that is, not the penalties, but the merits?
Mr. CLARK. It was inevitable that over dinner we would discuss the merits of the case, and we did.
Mr. WUNDER. Also on page 4 of your prepared testimony you discuss appeals to council; is that correct?
Mr. CLARK. Yes.
Mr. WUNDER. Have you ever been personally involved in an appeal to council?
Mr. CLARK. I attended one council meeting. It was a council meeting where West Texas State made their appeal for a lessening of their penalty. I was in attendance at that meeting. It was at the Crown Center Hotel in Kansas City.
Mr. WUNDER. You were in attendance, but were you personally involved in that appeal? That is the question. Did you draft, in that case, the confidential report?
Mr. CLARK. I did not draft it. Mr. Berst drafted the expanded confidential report.
Mr. WUNDER. So you were a spectator and not personally involved; is that correct?
Mr. CLARK. I sat at the staff table and observed; yes.
Mr. WUNDER. With respect to the confidential report, is it not true that the chairman of the committee on infractions approves these reports prior to submission to council ?
Mr. CLARK. It is very true that he approves them, yes.
Mr. WUNDER. So your statement with respect to getting into the minds of the members is somewhat altered by that; is it not?
If the chairman of the infractions committee approves the report, the confidential report, and agrees with the confidential report, then
there is obviously some indication that the chairman, acting at the behest of the committee, agrees with those statements made by the staff in the confidential report.
Is that correct?
This so-called report that goes up to the appeal body, the Council, is prepared lock, stock, and barrel by the prosecutor, that is, the investigator, and is prepared for the so-called judging entity and the judging entity says: “Yes, I agree with everything you wrote down about what was in our heads when we made that decision.”
It goes on up as the advice to the appellate body of the council? Mr. CLARK. That is correct.
Mr. SANTINI. Does the infractions committee write one word of the so-called explanation as to why they arrived at their own decision making in the ordinary case ?
Mr. CLARK. Not one word.
Mr. Clark, are you aware of a single instance where the committee on infractions has taken issue with the confidential report prepared by the staff ? Mr. CLARK. I am not.
Mr. WUNDER. Are you aware of the fact that the NCAA's procedures have been held not violative of due process in the case of the NCAA v. Gillard by the Mississippi State Supreme Court;
and in the case of Hunt v. NCAA by the District Court of the Western District of Michigan; Howard University v. NCAA by the D.C. Circuit Court; Regions of the University of Minnesota v. NCAA by the eighth circuit court; are you aware of those facts ?
Mr. CLARK. I am aware; yes.
Mr. Moss. The Chair states that he is also aware of the fact, but it does not persuade him of a single thing, but that the congressional committee has the right, the power, and, in fact, the responsibility to determine whether or not the court can err. I have seen a lot of damn fool decisions come out of court.
Mr. WUNDER. On page 4 of your prepared testimony, Mr. Clark, you discuss the SMƯ case. Upon what do you base your allegation that Walter Byers apparently deemed SMƯ's action to be a lack of submission to NCAA authority?
Mr. CLARK. I base that on office conversations that went on, on a daily basis, in an intimate organization. I had no personal contact with Mr. Byers in this regard, but Mr. Byers' feelings were bandied about in our office on a daily basis.
Mr. WUNDER. Who told you that?
Mr. Moss. Mr. Wunder, we are not in a court of law. The normal procedures in a court where you might go for the juglar with a witness are impressive there, but they are not here.
The Chair is trying to be careful. Anything that you want to develop here which could substantively enrich the record, go ahead and develop it, but we will not say each time: "Give me all those people who were there." We can always get it for the record and we can always receive it. But let us not try to undertake the role of a prosecutor at the moment.
The committee will suspend for 10 minutes in order to permit the members to respond to a rollcall now in process.
[Brief recess. ]
Mr. WUNDER. Mr. Clark, in your recent interview with Sports Illustrated magazine, did you indicate to them that Walter Byers maintained a list of protected member institutions ?
Mr. CLARK. I have read that article, obviously, but the information I have to impart to this subcommittee dealing with selective enforcement is contained in my statement and in answers to questions today.
Mr. WUNDER. So to your knowledge no such list exists?
Mr. WUNDER. On the bribery issue, the individual involved in this case was one Major Jones; is that correct?
Mr. CLARK. That is one example of bribery that we have touched on. I would like to say this. It seems to me, and has seemed to me for some time that the kinds of activities that field investigators engage in, what with transportation, buying meals, and pool games and babysitting, all constitute a form of bribery that I do not agree with.
Mr. WUNDER. You have a fairly broad definition of bribery. Is that what you are saying?
Mr. CLARK. The kinds of acts that field investigators engage in come within the realm of bribery, in my opinion.
Mr. WUNDER. As a lawyer you would make that same statement ! Mr. CLARK. Yes, I would.
Mr. WUNDER. Are you making reference to some statute or case in law?
Mr. CLARK. I am not.
Mr. WUNDER. Major Jones, at the time that you were interested in him, had already graduated from Albany State; had he not?
Mr. CLARK. That is correct.
Mr. WUNDER. I do not know if he graduated, but his collegiate career was over; was it not?
Mr. CLARK. Yes, I believe he was playing for the Allentown Jets of the Eastern League.
Mr. WUNDER. This, then, would not be a case when in your statement at the bottom of page two you state: "** * they are routinely cajoled, or even bribed, into sacrificing their athletic careers.”