Death of the Penalty -- series

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Thursday, November 29
Updated: November 30, 7:20 PM ET
Tark helped take bite out of NCAA investigation

By Tom Farrey

They were the good guys, these lonely agents of virtue, or at least truth, who with their pens and pluck documented the payoffs and misdeeds of those who would corrupt the most noble aspirations of college sport.

Jerry Tarkanian
Jerry Tarkanian wasn't afraid to bite back after being the focus of an NCAA investigation for years.
They were the bad guys, snooping around where they weren't invited, supposedly putting words in people's mouths with their untaped interviews, threatening the eligibility of athletes unless they talked, trashing the careers of talented coaches with their hearsay evidence.

Then Jerry Tarkanian came along.

Now, NCAA investigators often appear powerless.

"These days, the NCAA signs off on whatever rules a school says it broke," said Robert Stroup, a former NCAA investigator. "You don't see the big, contentious cases anymore."

One of the investigators charged with looking into allegations of wrongdoing in the University of Nevada at Las Vegas program, Stroup was named by Tarkanian as a co-defendant in a lawsuit against the NCAA that accused the organization of maliciously hunting him for two decades. The NCAA settled the matter in 1998, to Stroup's displeasure.

Other former investigators who spoke to share Stroup's observation. They characterize the NCAA enforcement arm as an out-gunned unit, diminished by three decades of harsh scrutiny of its methods and increasingly challenged to root out cheating in big-time programs that don't care to turn themselves in.

Certainly, fewer cases are being made than in the past. Over the past five years, only eight Division I-A football teams have been found guilty of major violations of NCAA rules -- the fewest in any five-year period since the NCAA started punishing schools in 1954. Rulings on cases involving Alabama and Kentucky are expected by January at the latest.

NCAA case history
Average annual number of major infractions cases involving Division I-A football and Division I basketball programs, by decade
Decade Football Basketball
1950s 3.2 2.6
1960s 2.9 2.3
1970s 2.9 5.5
1980s 5.4 5.8
1990s 2.2 5.7
2000s 1.5 4.0
The trend is less pronounced, but still visible in the top division of men's basketball. A total of 23 Division I major infractions cases in the past five years have reached the NCAA Committee on Infractions, the fewest since the late 1960s and early '70s, when college basketball had yet to explode in popularity.

Opinions vary on how much credit Tarkanian deserves for this downturn. But for nearly a quarter of a century, no one challenged the organization more aggressively than Tarkanian, whose complaints helped put the NCAA's enforcement and infractions process under a microscope before state legislatures, federal judges, blue-ribbon panels, even the U.S. Supreme Court.

Along the way, the NCAA cops stopped fighting schools as hard as they once did.

"The system now is fine for handling cases in which the schools self-report violations," said Dirk Taitt, who left the NCAA in 1999 after 12 years as an investigator and supervisor of infractions cases. "It is woefully inadequate for revealing and processing cases involving programs with sophisticated systems in place to hide rules violations."

NCAA officials say that while some cases are harder to put together than others, the enforcement arm is still getting the job done.

"The NCAA is not a police state," NCAA spokesperson Wally Renfro said. "The system is not set up to assume that everyone cheats, or that it will catch everyone who does cheat."

Member schools are required to identify and report rules violations to the NCAA. Those schools have worked more cooperatively with the NCAA in recent years when potential problems arise, an attitude that has helped mitigate penalties, Renfro said.

But if sanctions appear to be getting lighter in recent years, it's also due in part to a lack of damning evidence presented to the infractions committee, said Tom Yeager, chair of the eight-member body that rules on penalties.

"There just haven't been any cases of widespread violations since Texas Tech," Yeager said of a 1998 case that involved dozens of athletes who played while academically ineligible. The team lost 18 scholarships over three years after one of the last high-profile, acrimonious investigations between the NCAA and a school.

By the numbers
Athletes in the NCAA

Coaches in the NCAA

NCAA teams in all sports

NCAA member schools

NCAA investigators when
fully staffed

NCAA investigators
on current staff

Major violations cases in all divisions that NCAA infractions committees have ruled on this year, not including pending cases such as Alabama and Kentucky

Those cases this year that involved Division I men's basketball teams

Those cases this year
that involved Division I-A
football teams

Source: NCAA reports, infractions database
The notion of a timid NCAA enforcement staff sits at odds with public perception.

The NCAA has been known to suspend dirt-poor players for receiving a bag of groceries (former UCLA player Donnie Edwards) and punish schools for giving fruit baskets to recruits (University of Washington), creating the impression that it must be on top of serious cheating if it has time to pursue the petty stuff. The notion was dramatically reinforced last season when St. John's basketball coach Mike Jarvis said he felt "raped" after former point guard Erick Barkley was suspended for swapping his late-model Jeep Cherokee for an older Ford Explorer owned by his summer league coach, a transaction the NCAA considered preferential treatment.

At the time, Jarvis likened the NCAA to the Gestapo. It's a term that draws chuckles from those who have had the duty of building infractions cases.

"I think we were more of a paper tiger," said Chuck Smrt, who supervised the major infractions cases for the NCAA for nearly a decade before leaving in 1999.

Smrt used to have a moustache. His friends teasingly suggested it was fake, an aid for his presumably undercover work in college towns across the country.

"There was a belief that we would put toothpicks under people's fingernails to get them to talk," Smrt said. "But we had a very specific set of procedures that we had to follow. We couldn't disguise ourselves. We couldn't go undercover. When we went on campus, we told people we were coming and we told people who we were going to interview."

The reality is the NCAA is nothing more than a trade association. Unlike real cops, its investigators lack subpoena power so they cannot use the law to gather documents outside the university, such as private bank and phone records. Without those records, it's hard to prove many modern forms of cheating, such as boosters providing athletes with ATM cards to draw money, or an annuity purchased for the mother of a top prospect.

Cheaters are more careful than they were a decade ago, said Smrt, who suspects that 10 percent of programs are breaking major rules.

"Before, the booster who was violating the rules drove the convertible to the home football game wearing the polyester suit and his horn honked the fight song," he said. "Those people are out of recruiting now. If I'm a booster and I want to violate a rule, I'm going to find a friend of mine who has a friend of theirs who has a friend of theirs (to violate a NCAA rule). That person on the bottom has no relation to the university so the school is insulated from the potential liability."

Coaches also are keenly aware of investigators' constraints in gathering information. Tony Franklin, an assistant football coach at Kentucky football from 1997 until last season, said many coaches do not fear the NCAA because they know there's no legal recourse for investigators trying to compel the truth from other witnesses.

"The perception is, 'Maybe they won't catch us; that they can't really catch us and I can lie all the way through; that it's not any big deal,' " Franklin said. "I think that works, as long as you keep your mouth shut and only one or two people know at the most."

Coaches are often insulated from the acts, said Taitt, the former NCAA investigator. He said head coaches whose programs are benefiting from cheating deliberately choose not to know if a booster or staff member is breaking the rules, so they can deny knowledge of the act.

Jerry Tarkanian
Despite his team's success on the court, Jerry Tarkanian had been the center of the NCAA's attention throughout much of the 1970s, '80s and '90s.
Franklin, who is not cited for any violations in the Kentucky matter, contends that the Wildcats got caught for recruiting violations this year largely because the central figure in the scandal was a sloppy cheater who allegedly talked about his acts openly in front of students, and allowed copies of incriminating documents to get into the hands of office workers.

"When you look at the investigations around the country, that's usually how they break open," Franklin said. "It's when these guys get out and run around and tell too many people about what they've done."

Back in the 1970s when Tarkanian first caught the eye of the NCAA staff, investigators made up for technical limitations with stealth and an adjudication process stacked in their favor. They were allowed to build their cases without sharing much of the information with the school, and to submit hearsay evidence that might not confirm wrongdoing but could help the infractions committee gain a more complete picture of the investigation.

After UNLV was banned from television and the NCAA Tournament for two years and Tarkanian was suspended under orders from the NCAA, the coach won a Nevada court order blocking his suspension (from a state judge up for re-election, the NCAA noted). That led to Congress getting involved, and hearings were held in 1978 on the practices of the NCAA's allegedly abusive system.

The congressional probe died, and the NCAA beat Tarkanian in 1988 when his case reached the U.S. Supreme Court in a 5-4 decision. But along the way, "the negative publicity was so great that the NCAA felt that it had to do something to address the perception that it didn't have due process," said Gary Roberts, a Tulane University law professor and expert on NCAA legal issues.

Tarkanian, if nothing else, had become the droopy-eyed symbol of the frustration that many coaches and college administrators were feeling with the NCAA process.

Evolution of an allegation
So you think State U. is cheating at the expense of your alma mater? Here’s what must happen for anything to come of it:

Allegation noted: The NCAA gets tips all the time about rules violations, from high school and college coaches, media reports, the general public, and the schools themselves. The NCAA may assign an investigator to check up on the matter, or let the school do its own review and report the findings to the NCAA.

Preliminary Letter of Inquiry: If "reasonably reliable" information emerges that a violation occurred, the NCAA notifies the school president that it is formally under investigation. The NCAA shares information about the nature of the probe, including the time period and individuals involved.

Official Letter of Inquiry: As the NCAA nears completion of its investigation, it formally tells the school about the specific allegations it faces. Either way, the NCAA must tell the school after six months about the status of its investigation. If no formal allegations have been made after one year, the case can be dismissed.

School's response: The institution and other involved parties have 90 days to respond to the charges. Usually, schools admit some violations, dispute others, and self-impose penalties to show that it is willing to punish itself.

Pre-hearing conference: About 4-6 weeks before the Committee on Infractions hearing on the case, the NCAA, school and other parties share their evidence. There should be no surprises of new information at the hearing. The NCAA enforcement staff then draws up a case summary and distributes it to infractions committee members.

Committee on Infractions hearing: The school appears before the eight-member body that dishes out penalties. The school is usually represented by its CEO, athletic director, faculty athletics rep, among others. The NCAA is represented by the investigator, the case supervisor and the vice president of enforcement. The committee decides by majority vote and assigns one member to write the report, which usually comes four 4-6 weeks later.

NCAA appeal panel: If the school disagrees with the findings or the sanctions, it can ask that it be reviewed by a five-member committee that includes two people, usually lawyers, who are not associated with college sports.

Source: NCAA, research

Moving forward, measures were taken to better separate the enforcement staff, which did the investigating, from the infractions committee, which ruled on those cases. Investigators no longer socialized with committee members, and a staff position was created to communicate between those two bodies. An appellate panel within the NCAA structure was created to review decisions on penalties.

"For me, that was a real tough battle," Tarkanian said. "That was really hell. It was difficult, them harassing me and my players. But my situation helped bring a lot of light to a lot of problems. It brought a lot of reform."

Now, there's also greater scrutiny of the allegations that reach the committee. No more hearsay evidence. Unlike a police investigation, the NCAA must share with the school general information about its probe earlier in the process, often before key witnesses have been contacted. And investigators are strongly encouraged to tape-record interviews.

"That's good," said David Swank, who retired as chair of the NCAA Committee on Infractions in 1999 after the standard nine-year term. "You've got to be more careful with investigations. But that's why some cases never develop. There are witnesses out there who are unwilling to talk."

The NCAA retains some leverage over athletes and coaches, who can lose their eligibility or jobs for not cooperating. But its best hope for getting the truth out of boosters and others beyond the university's control -- out there where many of the most egregious violations occur -- is if law enforcement, with its subpoena power and penalty of perjury, gets involved, former investigators say. Some of the biggest cases in recent years coincided with federal prosecutions, including the Miami Pell Grant fraud case in 1995 and the current Albert Means case involving Alabama, in which Means' high school coaches were indicted on federal charges.

Given the difficulty of the investigator's job, Swank and others argue that the NCAA needs to expand the enforcement staff. The NCAA, with 977 schools and 360,000 athletes, has 15 field investigators. And that's when fully staffed, which has been rare due to high turnover brought on by long hours, stress and salary issues.

"It's a tough job," said Taitt, a former college wrestler and Golden Gloves boxer. "It sounds like fun to investigate corruption in sport. But it isn't fun work. You've got to believe in the greater good and that you're really making a difference, because at the end of every infractions case it's not a celebration. Somebody typically loses their job and some student-athlete loses his eligibility."

Playing bad cop means always watching your words, and your back. In contentious cases, investigators have stayed in hotels far outside the city where they are doing their work to avoid their every action being tracked by the school or its rabid fans, and to protect confidential informants.

An NCAA investigator is about as welcome in a college town as a curfew. Former investigator Les Pico worked on the Texas Tech case in 1998. He recalls sitting down in a restaurant in Lubbock, Texas, and never getting served despite repeated requests. Pico and another investigator finally got up and left, wondering if they were being deliberately ignored because media reports had made them known figures in the college town.

For their trouble, NCAA investigators -- typically former coaches or young lawyers right out of school -- get about $40,000 in starting salary. They top out at around $70,000. Rarely do they last more than a few years before taking better-paying jobs elsewhere, sometimes with law firms defending schools in NCAA cases or as compliance coordinators within athletic departments at member schools.

Rock bottom for NCAA enforcement staffing came in 1999, when NCAA headquarters were moved from Kansas City to Indianapolis. Two-thirds of its field investigators, as well as three of its four case supervisors, resigned. Many were their most seasoned reps.

"That was a significant loss of institutional memory," said David Price, the NCAA's vice president of enforcement. Building it back up is a slow process. One former investigator familiar with the work of the current staff, and who spoke to on the condition of anonymity, said of today's group of 12 investigators, "Only a handful of them know how to take a lead and develop it."

NCAA Headquarters
The NCAA shifted its headquarters to Indianapolis in 1999, but two-thirds of its investigators didn't make the move from Kansas City.
Price, who put two of his best investigators on the Alabama and Kentucky cases, defends his green staff as sufficiently capable. "We have people who can dig and come up with information, given the limited authority they have," he said. Other big cases are in the making, although he cannot talk about them, per NCAA policy, he said.

Price is a plain-spoken, well-liked Oklahoman who was hired as enforcement chief in 1998. He came from the Pacific-10 Conference, where as associate commissioner he built a reputation as a tough, fair investigator. Most publicized was his seven-month probe of the University of Washington in the early 1990s, in which he conducted more than 200 interviews after newspapers brought allegations of booster misdeeds to light. The Huskies were hit with bowl, TV and scholarship sanctions.

To register their displeasure, Husky fans sent Price screws. Price said he used them to fix his backyard fence.

By the time Price joined the NCAA, however, the winds in college sport had shifted.

When Stroup became an investigator in 1986, colleges presidents, determined to crack down on the most egregious cheaters, had just given the NCAA the ability to shut down a program for repeat violations. Stroup, a former Minnesota fullback fresh out of law school, had just finished clerking for the North Dakota Supreme Court. He had offers for higher-paying jobs but took the NCAA position -- at $26,000 back then -- because, he said, he believed in the high-minded principles espoused during his interviews.

"The catch phase I heard was 'We're here to make sure all schools compete on a level playing field,' " Stroup said.

Most of the investigators were former athletes from parochial schools. They mused about the meaning of that, Stroup said. They certainly did some righteous work -- laying the groundwork for the heavy sanctions in the late 1980s against football programs at Oklahoma, Oklahoma State, Cincinnati, Memphis, Texas A&M and SMU. Major violations were found during that period at most schools in the Southwest Conference, which essentially merged with the Big Eight to form what is now the Big 12 Conference.

That era is widely credited for encouraging schools to improve their preventive rules compliance systems. However, at the time, new NCAA executive director Richard Schultz also noted that the rash of headline-grabbing cases was creating the public impression that college sports was out of control. Stroup said he detected a tapering off in resolve at that point to pursue the adversarial cases that can take two or three years to build.

Enforcement supervisors began asking investigators to bring cases to resolution quickly, which usually meant skipping some of the critical investigative groundwork to determine the truth, Stroup said.

"You know as well as I do that if you go directly to a coach and ask him if he cheated, nine times out of 10 he'll say 'No,' " he said. "You need that background information to test his credibility and the veracity of his statement."

The NCAA's way of doing business was under full-scale attack. A book by investigative journalist Don Yeager, "Undue Process: The NCAA's Injustice for All," gave shape to flaws in the enforcement and infractions structure. With Tarkanian as its poster boy, several state legislatures passed laws requiring fundamental changes in the way the NCAA conducts investigations. An NCAA subcommittee that included former U.S. Supreme Court Justice Warren Burger and former Solicitor General Rex Lee weighed in with its own pointed critique.

Then in 1995, moral condemnation of NCAA rules came from an intimate: Walter Byers. In his book, "Unsportsmanlike Conduct: Exploiting College Athletes," the NCAA's executive director from 1951 to '87 offered an unflinching rebuke of the organization he essentially had created. He derided the "plantation mentality" of what had become of big-time college sports, where coaches and administrators often make tidy sums while athletes are compensated with no more than a scholarship.

If you can't beat them ...
Two years ago, Chuck Smrt got smart. After nearly two decades with the NCAA, the former investigator and supervisor of major infractions cases put up a shingle and announced that he was in business for himself, as head of The Compliance Group.

He became the latest in a long line of former enforcement staffers to offer his services to schools looking to stay out of NCAA trouble. It's a cottage industry in which college presidents have been willing to pay sometimes hundreds of thousands of dollars to represent a school in an NCAA inquiry.

"The people who have made the most money out of this (NCAA infractions process) are the former investigators," said Ken Hatfield, a longtime head coach who is now with Rice University. "Back then, the NCAA had the best of them. Now, they specialize in fighting NCAA violations. That's hindered NCAA investigations."

Hatfield likens them to powerful lobbyists who use connections from previous government jobs to benefit their clients. Smrt, who represented the University of Wisconsin in its recent Shoe Box case that resulted in the loss of 10 scholarships, says that advantage is a matter of expediency, not the calling in of favors or anything improper.

"I know the legislation, and I know the process," he said. "I know the exact person to call to answer my question."

David Price, the NCAA's vice president of enforcement, said he appreciates the role that former investigators have come to occupy in these cases. Their presence saves considerable time because the NCAA doesn't have to explain the complicated infractions process.

Former NCAA infractions committee member Richard Dunn also notes that former investigators don't just defend the school, but help figure out where it has problems.

"When the school agrees to turn the case over to those people, they may dig up more violations," he said.

-- Tom Farrey

Soon, some of the NCAA's biggest public critics could be found at its headquarters. Top officials there agreed the ever-expanding rulebook had gotten too thick. After Schultz lost his job -- due to a rules violations scandal at the University of Virginia where he had previously been athletics director -- his successor, Cedric Dempsey, led the call for "deregulation" of the organization and a scaling back on the NCAA's strict notion of amateurism.

Since then, the NCAA watchdog rarely has bared all of its teeth. The recruiting scandals at Alabama and Kentucky represent the first significant cases in Division I-A football brought to the infractions committee in three years. In men's basketball, Minnesota was penalized last year for widespread academic fraud, but as in the Kentucky football case, the school drove that investigation.

"The NCAA enforcement process is based on self-policing," Smrt said.

But what about schools that don't cooperate? Former NCAA investigators and others say the will has been lost to go after a cheating program that doesn't want to turn itself in.

"There's fear," said Roberts, the Tulane law professor. "Negative publicity. The courts. Litigation. All those things have the NCAA running scared."

Just for good measure, Tarkanian put investigators on notice that they, too, could be sued for doing their jobs. In 1993, after the U.S. Supreme Court killed his due-process lawsuit, Tarkanian filed a new suit alleging that the NCAA's "persecution" of him had interfered with his ability to make more money as a coach. Named as co-defendants were the retired Byers, then-enforcement chief David Berst and Stroup, one of the investigators assigned to the case over the years.

Tarkanian claimed Stroup misled a witness into thinking Stroup was a reporter, tape-recorded an interview and threatened an athlete with loss of eligibility unless he agreed to be interviewed. The allegations were a small part of the lawsuit, and Stroup denies doing anything wrong. He had hoped the NCAA would not settle the case, as was its custom.

But in 1998 the NCAA handed Tarkanian a check for $2.5 million to dismiss the matter. Stroup says the NCAA told him that unless he signed off, the organization wouldn't cover any further legal expenses. By then a health-insurance lawyer raising a family back in his hometown of Fargo, N.D., Stroup consented.

That the NCAA backed down didn't go unnoticed by the troops.

"That weighed on all our minds," said Pico, who left the NCAA in 1999. Said Taitt, who also resigned that year, "Litigation has a chilling effect on everything you do. Just the threat alone can put a couple of investigators on their heels."

Renfro said today's litigious environment has made the NCAA "pay more attention to due process and other laws than in the past, just like every private organization." But, Price notes that "if we do our work properly, we shouldn't have to worry."

Stroup contends the issues run deeper than that.

"Politically," he said, "enforcement lost the support of the NCAA's leadership, which is a reflection of the feeling of member schools. That's sensed by my buddies who are still there. It's sensed by the guys who are newly hired, too. It's a place to get your foot in the door (to a higher-paying job elsewhere in sports), not a place to make your career."

As for Tarkanian, he said he always saw an important role for the NCAA enforcement arm. He said his goal was to reform the system, not tear it down so that major violations might go unpunished unless a school voluntarily roots them out. But some say exactly that may have happened, now that a few years have passed and the fallout is evident.

Tarkanian, for one, isn't convinced that big-time cheating has simply perished.

"Some of the stuff that goes on is mind-boggling," he said over a cell phone, his gravelly voice sounding more subdued than usual. It is not the voice of victory. "There are some serious violations going on out there."

With that, Tarkanian announces that he must hang up. He apologizes, saying the subject tires him. Perhaps like his long-time adversary, the NCAA, he's worn out.

Coming Friday: Conferences have emerged as shadow players in the NCAA enforcement process. And no one exerts more influence than SEC commissioner Roy Kramer. The final part in a three-day ESPN series.

Tom Farrey is a senior writer with He can be reached at

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