UW, Neuheisel, respond to 'Notice of Charges'

"The Pac-10 has examined the evidence and determined that Ms. Richardson made a simple, honest mistake. Having so found, it is untenable to conclude that the person who relied on that honest mistake knowingly violated Bylaw 10.3. With due respect, such a conclusion would make no sense."

This was the conclusion of Rick Neuheisel's 'response', prepared by his attorneys Bob Sulkin and Greg Hollon that was delivered today countering the Pac-10's 'Notice of Charges' filed against both Neuheisel and the University of Washington on October 15, 2003. Both Neuheisel and the school had until November 15 to respond to various allegations, including a violation of NCAA Bylaw 10.3, football staff involvement in NCAA basketball pools and secondary violations regarding use of a booster's boat and charge for said use.

"When it's appropriate we will respond, but we haven't seen it yet," Washington Athletic Director Barbara Hedges said Tuesday when asked if she was aware of Neuheisel's response.

The University's response to 10.3 was to squarely put the blame on their fomer head coach, who was fired over his participation in what they deemed 'high stakes' NCAA basketball pools. Neuheisel participated in a pool in 2002, wagering $3,610 in the 'auction'. He won back his original fee, plus another $4,799, for a total of $8,409.

In 2003, Neuheisel participated in the same 'auction', paying in $2,790. He won back his original $2,790 plus an additional 7,324 (he only received $6,420) for a total of $10,114.

Sulkin and Hollon argue that 10.3 is inherently vague and that it doesn't hold up to either the legal doctrines of "void for vagueness" or "rule of lenity", which requires that any ambiguity in rule or statute be resolved in favor of the accused. Besides, they further claim in their response that the University expressly gave Neuheisel permission to be in a pool outside the school because of a memo circulated by Compliance Director Dana Richardson in 1999 and again in 2003 that was never challenged.

"With respect to the Bylaw 10.3 allegation, Mr. Neuheisel attended the auctions after receiving memoranda from the University of Washington's Compliance Office expressly authorizing participation in such events," it said.

The heart of that memo states, "The bottom line of these rules is that if you have friends outside of ICA (Intercollegiate Athletics) that have pools on any of the basketball tournaments, you can participate."

All parties agree to one thing - Richardson's interpretation was wrong. "The Pac-10 itself has concluded that the University's interpretations were "an honest mistake," Neuheisel's response says. "Having so concluded, the Pac-10 can hardly sanction Mr. Neuheisel for relying on them. The fact is, had Mr. Neuheisel been told it was a violation of NCAA Bylaws to participate in such auctions, he would not have attended them.

"Obviously, Mr. Neuheisel cannot be faulted for Ms. Hedges' failure to read and correct what she now claims were inaccurate interpretations."

The University's answer to this is to the point. "...the University asserts that Mr. Neuheisel's decision to participate in two high-stakes gambling events was his choice and he alone must be held responsible. The Pac-10 should not penalize the University for Mr. Neuheisel's violation of NCAA gambling rules."

But they added they don't believe Neuheisel ever saw Richardson's 1999 memo. "If he actually saw the email and 'relied on it' to authorize participation in the high stakes gambling events, why didn't he rely on it to stop the prohibited pools conducted in his own football office?"

But Neuheisel is pinning his hopes of beating the 10.3 rap on various levels. First and foremost, there is an inherent belief that he should be able to trust his compliance office for accurate information.

"Mr. Neuheisel was entitled to rely on the information provided to him by the Compliance Office," his response reads. "If that was not the case, there would be no reason to have a compliance office."

He bolsters his point with written testimonials by Joe Paterno, Mike Bellotti, Jim Tressel, Ron Turner, Lou Holtz, and others, commenting on the important role a compliance department plays in making sure their football programs keep in step with NCAA rules and regulations.

"...to sanction Mr. Neuheisel for following the advice of his Compliance Office would send a crushing and incorrect message to coaches throughout the nation. It would undermine the very system that has been set up to ensure that NCAA Bylaws are interpreted by people most capable of doing so," claim Sulkin and Hollon.

At the same time Neuheisel was involved in this 'calcutta'-type of gambling, staff in the Washington football department, including coaches, administrators and others, were putting $3 to $5 down in their own NCAA basketball pools. Now the NCAA and the school have both declared the 1999 pool outside the statute of limitations, but the ones that occured in 2000, 2001 and 2002 were investigated.

Liz Zelinski and Erin Chiarelli are the only football office staff to step forward and acknowledge participation in these pools. However, former graduate assistant Ikaika Malloe also spoke to the Pac-10 and NCAA and admitted to not only participating, but also spearheading and running the pools. He did so in a second interview on September 26th, 2003, after only admitting participation in the first interview, which had occurred a month earlier

In his statements, he implicated Keith Gilbertson, Chuck Heater, Randy Hart, Tim Hundley and Jerry Nevin as participants, as well as former coaches Bobby Hauck, Steve Axman, Tom Williams and Brent Myers but later his testimony was deemed 'contradictory' by both the school and Pac-10.

"(Tom) Williams stated that Malloe had called him the prior week to tell him that Malloe had accidentally provided Williams' name to the NCAA and that he meant to name another individual instead of Williams," the Pac-10 Notice of Charges says. "Williams said Malloe told him that Malloe meant to say Tony instead of Tom, but then didn't go back and correct what he had said because he was afraid the NCAA would think he wasn't telling the truth."

Zelinski and Chiarelli claim winning from $50 to $60 in said pools, yet no other current staff members or coaches recall participating. "We believe our coaches," Hedges said. "We believe there's no credible evidence to suggest they were in the pools."

The coaches have been interviewed at least three times, by the school, the Pac-10 and the NCAA. "Right now I can't imagine a circumstance where they would have to go back to the coaches," Hedges added.

And not only were members of the football department involved in pools, but managers, trainers and even compliance people admit to putting down money in NCAA mens basketball pools. The Pac-10's Notice of Charges lists the following allegations after their own investigation.

3A: $5 pool in football office. 1999 pool is past statute of limitations.
3B: Equipment manager Tony Piro - Participation in $5 outside pool.
3C: Trainers Patrick Jenkins, Carrie Graham, Ben Mikla, Kathy Thompson and Jeff Landskov - Participation in $5 outside pools.
3D: Compliance Director Dana Richardson - Participation in outside pools.
3E: Erin Chiarelli - Participation in small pool outside football office
3F: Coach Matt Thurmond - Participation in fantasy league

Richardson's involvement seems particularly puzzling, but consistent with her interpretation of NCAA Bylaw 10.3 at the time of her involvement.

"Ms. Richardson now recognizes that participation in 'pools' involving intercollegiate sports and certain professional sports, even when organized outside of the athletics department, is a violation of NCAA rules," Washington's response states.

It's Richardson's interpretation of 10.3, and subsequent admission of error that has Sulkin and Hollon frustrated by Neuheisel's termination. "Mr. Neuheisel was entitled to both a Bylaw that clearly states what is prohibited and a correct interpretation of the Bylaw from his Compliance Office," they state. "Since he received neither, he cannot be held at fault."

They further indict Hedges for her lack of oversight. "In fact, as a general proposition, Ms. Hedges discouraged Dana Richardson from consulting with the Pac-10 Conference, and told her "you don't have to run everything past the Pac-10 Conference Office," they claim.

Their wrath is not just aimed at the University. On September 24, 2003, months after Mr. Neuheisel's conduct fell under scrutiny, Lynn Holzman of the NCAA Membership Services office issued an opinion to Ron Barker of the Pac-10 concerning application of Bylaw 10.3 to the facts of this case.

In a brief statement, one that Sulkin and Hollon characterize as 'wholly devoid of any explanation or analysis', Holtzman claimed that "it is the position of the Membership Services Staff" the type of conduct in which Mr. Neuheisel engaged "is a violation of Bylaw 10.3-(b), (d), and (e)."

They note that Holtzman is not a lawyer. "In contrast, multiple lawyers at the University of Washington, including both Professor (Robert) Aronson of the University's law school and Dana Richardson, agreed repeatedly over the course of many years that the Bylaw by its terms did not prohibit participation in pools. Obviously, the Bylaw in question is not a model of clarity."

Sulkin and Hollon further bolster their point on 'vagueness' with the opinion of a law professor that specializes in constitutional law.

Calvin Massey, professor of law at the University of Law, Hastings College of the Law (Professor Massey is currently a visiting professor at Boston College Law School) has concluded that Bylaw 10.3 is unconstitutionally vague as applied to Mr. Neuheisel's conduct.

This brings us back to "void for vagueness". This doctrine bars enforcement of a statute which is so vague that people of common intelligence "must necessarily guess at its meaning and differ as to its application," according to Sulkin and Hollon.

Massey reinforces this with an example. "Perhaps [Professor Aronson and Ms. Richardson] were wrong; if so, that in fact merely reinforces my conclusion that NCAA Rule 10.3 would be void for vagueness, [and] a violation of due process …." he said.

Then he specifically brings up 10.3 (b). "[T]he NCAA's "Sports Wagering" web site asserts that Rule 10.3 does not cover a wager between schools "for a tangible item (e.g., governors cup)." This is a curious interpretation, as these traditional football wagers (e.g., Stanford and California's contest for "The Axe") are paradigmatic "bets," for they fall squarely within the definition of a "bet" as a bilateral promise to deliver a stipulated thing if the predicted event occurs adversely. Presumably, but for this NCAA interpretation of Rule 10.3, the athletic directors of either Stanford or California would be violating Rule 10.3(b) when they discuss scheduling the next Stanford-California football game, for possession of "The Axe" is contingent on the outcome. By contrast, Neuheisel's participation in an NCAA men's basketball pool is, as discussed above, not a bilateral promise, nor was his participation in that pool in any way an offer to accept bets from others. A clever person, let alone a person of ordinary intelligence, might have difficulty understanding why a two party wager between universities is not included within Rule 103(b) but mere participation in an informal pool is prohibited by Rule 10.3(b)."

Norm Arkans, the associate vice president and executive director of University Relations, sees it in much more pragmatic terms. "There's a light year's difference between a couple of bucks and a highly visible coach in a public setting, engaged in a high-stakes betting environment. They are vastly different activities."

The school's complaint echoes Arkans' thoughts. "Although he had been repeatedly counseled by the Athletic Director to check with the compliance staff, Mr. Neuheisel never asked the compliance office whether participation in a high-stakes NCAA tournament gambling event involving tens of thousands of dollars was a violation of NCAA Bylaws."

"The Compliance Office placed no limitations, financial or otherwise, on participation in off-campus pools," Sulkin and Hollon claim. And in regard to the Richardson memo, there is no amount mentioned.

"Rick Neuheisel had the same right to rely on the e-mails "as written," they added. "Simply put, the reason Mr. Neuheisel's participation in the auctions was not more limited is because the e-mails set forth no limits. Indeed, Rob Aronson, in a June 12, 2003 televised press conference, acknowledged that the e-mails did not contain a dollar limit and stated "it was a mistake not to recall that memo."

By bringing in 10.3 (e), Ms. Holzman, on behalf of the NCAA Membership Services Group, took the position that an auction like that in which Mr. Neuheisel participated in is "a method employed by organized gambling."

But the NCAA contradicted themselves several years earlier, according to Neuheisel's attorneys. "...In a draft 1999 amendment to Bylaw 10.3.1, the NCAA specifically referred to "pools," and expressly distinguished them from methods "employed by organized gambling." Nonetheless, it has never amended Bylaw 10.3 to expressly prohibit them. The NCAA has an obligation to make its rules clear, but has failed to do so."

As a result, Sulkin and Hollon claim, "The bottom line is the rule is vague as applied to Mr. Neuheisel's actions, and therefore must not be used as a means of punishing him."

Unfortunately for the University, gambling charges aren't the only allegations contained in the Pac-10's Notice of Charges. During three of the four recruiting seasons Neuheisel was in charge at Washington, two privately owned boats were used in conjunction with official recruiting visits. They were used to ferry prospective student-athletes between Neuheisel's house and a local restaurant.

On six occasions, a boat owned by a representative of the school's athletics interest was used. For the other times, Neuheisel's boat was used. Per NCAA Bylaws, the recruits were charged from their entertainment allowance for riding in the boats.

After investigations by the school, the Pac-10 and the NCAA, two problems were uncovered. First, the recruits were incorrectly overcharged or undercharged for the rides. Secondly, by having the booster act as pilot of the boat, it may have led to incidental contact between the booster and the athletes.

The school contends that both of these issues are regrettable, but still relatively minor. In regard to the accounting, 13 prospective student athletes were involved, with a total of $120 undercharged during all three years. "It wasn't a significant amount of money," Hedges said.

There was a miscommunication within the compliance office and the football office regarding whether the recruits should be charged based on a ferry rate or on the rate it would have cost to rent out the boat. The rates varied, depending on the number of recruits on the boat during each trip.

The prospects that enrolled at the University have repaid the value of the extra benefits to Children's Hospital as a charitable donation. Because the value of the extra benefits did not exceed $100 for any individual athlete, the athletes were never declared ineligible.

While the accounting error is on the compliance department, there is much disagreement on who shoulders the blame for the inadvertant contact by the booster. In many ways, it comes down to a 'he said, she said' between Neuheisel and Hedges.

"Rick and I discussed this," Hedges said. "I told him that he must pay for the cost of renting the boat and the recruits had to pay for the cost of the trip. We never discussed who would be piloting the boat."

Ironically enough, when Neuheisel was looking for prospective boat-owners for help in his recruiting efforts, it was Hedges who introduced Neuheisel to the booster that eventually helped out.

Sulkin and Hollon have the testimony of former recruiting secretary Claudine (Low) Kimm, who saw the boat situation much differently than the school. "Rick Neuheisel had no involvement in the details of arranging the boat," Kimm testified in Neuheisel's response.

And even though Hedges knew whose boat it was, it apparently didn't occur to her that the booster might be somehow involved in the activities. She even admits to seeing him during recruiting visits. "I made the assumption that everything had been cleared through compliance," she said. "I made an incorrect assumption. I should have asked the question."

"The issue as to whether or not the booster should captain the boat was never raised by the Compliance Department," Sulkin and Hollon contend. "As Ms. Kimm explains, "the only issue raised by the Compliance Department regarding the use of the boat was the cost to recruits and their parents.

"It was Ms. Kimm who spoke directly with the booster and told him where he needed to be with his boat, when he needed to be there, and the details concerning payment. Ms. Kimm explained that no one "in the Compliance Department ever told me specifically that a booster could not drive the boat, or of any concern of using a booster's boat."

Neuheisel's attorneys claim that Kimm's testimony, coupled with the compliance office's consent, gets their client off the hook with regard to the boat. "With respect to the boat issue, it is clear that the conduct was sanctioned at the highest levels of the Athletic Department," they said.

The University remains steadfastly in the other corner. "The limited and inadvertant contact between the Representative and prospective student-athletes was primarily the fault of the former head football coach," states their response.

One thing all sides agree on is that the booster had very incidental contact with recruits, except for the occasional handshake and 'hello'.

The most disheartening of all the charges levied against Washington is the final one - failure to monitor. Hedges said Tuesday that they were only there to address the Notice of Charges and would not comment on the 'Dr. Feelgood' situation.

The 'failure to monitor' charge stems from two issues - the Richardson email and the issues surrounding use of boats for recruiting purposes. "We do not believe that these two issues rise to the level of 'failure to monitor'," the school claims in its response.

"The conduct of the University and its staff or representatives, as set forth in charge #4, was minimal, inadvertant, provided no recruiting advantage, and very simply is not the type of conduct that has led to previous findings of a failure to monitor by the NCAA or the Pac-10."

Arkans was even more specific. "You can't charge a 'failure to monitor' based on an error in interpretation. If making a mistake is a 'failure to monitor', every school in the country would be guilty. A 'failure to monitor' would be not sending a memo out at all."

But Neuheisel claims there was a climate conducive to gambling activities because of the lack of proper monitoring. Tim Hundley, current co-defensive coordinator, told the Pac-10 and NCAA that he wasn't aware that an NCAA basketball pool could be considered gambling. Coaches Chuck Heater, Bobby Kennedy, Randy Hart, Keith Gilbertson, and the Director of Football Operations, Jerry Nevin, echoed Mr. Hundley's statement and all told the Pac-10 and NCAA investigators that they understood they could not "gamble," but they did not consider an NCAA basketball pool to be "gambling," according to his response.

"Clearly, the coaches and staff at the University of Washington were not receiving the type of education they deserved."

"The emails warning about gambling are evidence of the University's effort to educate and montor the conduct of the ICA staff. A single erroneous statement...cannot form the basis for a failure to monitor charge," claims the school in its response. "Even Mr. Neuheisel himself admitted in his initial interview with NCAA investigators that he knew gambling was prohibited, and that was why he just watched but did not participate."

Even so, Hedges is attempting to remain pro-active in regard to compliance. "I've hired a compliance group out of Kansas City to review our compliance," she said. Not that we don't have good compliance, but it's always good to review it when these types of things come up."

A report is expected back within the next 60 days.

The University also makes an argument in their response that a 'failure to monitor' isn't warranted in this case because it would be going against current NCAA precedent. They cited 14 cases in 2003 alone that involved inadvertant errors or miscommunication similar to the Washington case and failure to monitor was not charged in any of those reported cases.

The penalties.

Here are the self-imposed penalties, as spelled out by the University in their response.

The mistake regarding the charges for boat rides was made by the compliance personnel. Rob Aronson and Dana Richardson received letters of admonishment 'emphasizing the need for careful communication within the Compliance Office and with all ICA staff and coaches.

Richardson has additionally received a letter of reprimand counseling her in regard to her participation in pools and her erroneous interpretation of NCAA rules.

"She has to be held to a higher standard," Arkans said of Richardson and her conduct. "And don't underestimate a letter of reprimand. It's an official record of rules violations. You don't want to get more than one of those."

Because this happened with the football program, the program has also been penalized. The number of official visits allowed during the 2004-2005 season will be reduced by eight. This means 48 visits instead of the normal 56 allowed.

The football program will also not be allowed to use a boat as transportation during the 2004-2005 football season.

The addition actions taken by the University include the firing of Rick Neuheisel, letters of admonishment sent to Liz Zelinski, Erin Chiarelli, Keith Gilbertson, Chuck Heater, Randy Hart, Tim Hundley and Jerry Nevin due to their participation or knowledge of pools in the football office, letters of admonishment to trainers Patrick Jenkins, Kathy Thompson and Ben Mikla counseling them in regard to their participation in pools and a letter of caution sent to Tony Piro counseling him in regard to his participation in a pool.

There will be a hearing, scheduled for December 15th, where Washington will be able to present its case to the Pac-10. A decision will be rendered, and the self-imposed penalties will either be upheld or additional penalties will be levied. That will be known when the Pac-10 counsel meets again in March of 2004. Then the decision will be sent to the Pac-10 Presidents and Chancellors, then down the line to the NCAA for a final decision.

The NCAA can either accept the penalties, add additional sanctions on the school, or have their own meeting to address the issues at hand.

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