It can never be forgotten that The University is a member of the NCAA and continues to be bound to cooperate fully in doing all that can be done to assure rules are not violated and that if they are they are uncovered and penalized. That said, it has already been shown that cooperation taken to the extreme is foolhardy.
Alabama's previous defense team -- and, therefore, The University's football program -- was smashed by the NCAA Enforcement Staff and by the NCAA Infractions Committee.
Alabama's employment of the law firm the NCAA wants a school to engage -- Ice Miller of Indianapolis and, specifically, former NCAA investigator Rich Hilliard -- would appear to have been hundreds of thousands of dollars of Alabama's much-needed money thrown down a rathole. It appears Hilliard continues on board, but it is likely that Alabama's new lead counsel will limit the damage that can be done to The University from that column.
Previously, it was announced by The University that the appeal would center on "certain findings made and penalties imposed" by the Infractions Committee. Robert Cunningham, Jr., the attorney from the highly-regarded Mobile law firm of Cunningham, Bounds, Yance, Crowder and Brown who is taking over the lead in the case, has said, "We do understand, and everyone interested in this appeal should understand, that we face a very difficult uphill battle."
It is likely that the area of confrontation of most interest to Alabama followers regards the NCAA's use of a "secret witness."
Alabama's original legal team was surprised by the NCAA Enforcement Staff's inclusion of the witness' testimony in its final report to the Committee on Infractions. While an attorney in the real world would probably have seen the warning signs and been prepared for this tactic from the NCAA, Alabama was not. The University was aware of the witness, but since his (or her) testimony was originally "off the record," the Alabama defense team had not expected it to be in the Enforcement Staff's final report to the Infractions Committee.
Had The University defense team been prepared to address the credibility or motives of this witness in Alabama's appearance before the Infractions Committee, the damage to Alabama football might have been far less.
Despite the damage done by this witness to Alabama, The University continues to have its hands tied. No one representing The University or the NCAA is permitted to reveal his identity.
While every nuance of the investigation of Alabama was conveniently leaked to the media in order to sensationalize the case against The University, this witness is free from such scrutiny.
Unless the witness is employed by an NCAA institution, he was under no obligation to meet with an NCAA investigator. He could have declined such a meeting with absolutely no repercussions to himself. Moreover, after the witness gave "off the record testimony," essentially background information, apparently he later gave explicit permission for his testimony to be included in the final report.
Although details are not known, it would appear the Enforcement Staff had to receive permission from the witness to include his testimony in the report at a time after Alabama had been aware only of his "off the record" status.
Even at that late date, the witness could still have declined, but obviously did not.
Also not clear is whether a representative of Alabama was present when the witness gave his interview to the Enforcement Staff.
This witness was stunningly convenient for the Enforcement Staff and the Infractions Committee. Woefully weak cases are held together by the amazing strands provided by the secret witness just when and where needed.
- The secret witness claimed that Alabama booster Logan Young of Memphis told the secret witness that Young had provided a car to former prospect Kenny Smith of Stevenson, Alabama.
- The secret witness, in the summer of 2000, told the NCAA about Milton Kirk's desire to testify. Kirk is the former assistant football coach at Memphis Trezevant who has had a variety of stories about what went on in the recruitment of Albert Means.
- The secret witness said that Young told the witness in January, 2000, that Young had given cash payments to former Memphis Head Coach Lynn Lang ($40,000), to Milton Kirk ($40,000), and to Means' mother ($35,000).
- Furthermore, the secret witness said, Young told the witness that Young had "bought" every Memphis prospect signed by Alabama since 1994.
- The secret witness also provided a motive for Young to cheat: the secret witness said Young told him he did this to offset cheating by Tennessee.
- In an October 4 interview, the secret witness said Young told the witness that he was too smart to be caught by the NCAA.
- And the secret witness also received a "confession" from Alabama booster Ray Keller of Stevenson, that Keller told the witness that Keller gave cash to Alabama student-athletes on a regular basis.
Allegations one, three, four and five were based on a conversation the witness claims to have had with Young in January of 2000.
Alabama played the University of Michigan January 1, 2000, in the Orange Bowl in Miami, Florida. As has long been his custom, Young attended that Alabama game, including several parties and/or meals in the Miami area the couple of days leading up to kickoff.
Given that no other witnesses were cited as providing either confirming or rebuttal testimony to what was actually said during that pivotal "conversation," either every other person present refused to talk to the NCAA about the "conversation," or the alleged discussion took place in private with only Young and the witness present.
A good defense team would likely have called into question the credibility and/or the motivation of the secret witness. Mr. Cunningham's task will be to get at the truth and to help The University's case, and he could be expected to attack this suspicious testimony.
And if the witness -- and therefore the testimony -- is discredited, then much of the case against Alabama crumbles.
There was no paper trail in the Means case -- only selected testimony of Milton Kirk and other evidence that alone was not conclusive. The Smith case was beyond the NCAA statute of limitations and was only included to prove a so-called "pattern of behavior" on the part of Young. It, too, lacked anything approaching conclusive evidence.
The only way in which either allegation could have been a part of penalties against Alabama is through the testimony of a witness against Alabama who has still not been identified.
Is this any way to run a bureaucracy in America?