CRAWFORD | Central question in Pitino's response to NCAA: What w - WDRB 41 Louisville News

CRAWFORD | Central question in Pitino's response to NCAA: What were the red flags?

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WDRB photo by Eric Crawford. WDRB photo by Eric Crawford.

LOUISVILLE, Ky. (WDRB) — Where were the red flags? That has been the question University of Louisville basketball coach Rick Pitino has been asking himself since learning of the sex-for-recruits scandal within his program last fall. Now, it's also a question he's asking the NCAA.

When it issued its Notice of Allegations, the NCAA charged Pitino with failing to monitor his director of basketball operations, Andre McGee, who is alleged to have run a scheme paying Katina Powell to bring strippers to parties in the men’s basketball dorm, and providing money to recruits to tip and have sex with those women.

The NCAA could have gone further in its allegations against Pitino. It could have alleged that he failed to monitor his program, a charge which certainly would’ve carried a hefty suspension and perhaps a show-cause penalty beyond. Nor did the NCAA allege that Pitino failed to promote an atmosphere of compliance.

Instead, the NCAA hit Pitino with the charge of failing to monitor McGee — still a serious charge, a major violation that carries the possibility of suspension and show cause — but much more narrow in its scope, and testament that the NCAA found Pitino was taking the right compliance measures overall throughout his program.

Still, once violations are found within a program — and U of L already has admitted to major violations and self-imposed some heavy penalties — the NCAA then presumes a coach is at fault. There is no “innocent until proven guilty.” For coaches in Pitino’s situation, the assumption is that you’re guilty. You have to prove your innocence.

In Pitino’s case, the NCAA found, specifically, and I am quoting the Notice of Allegations here, and adding my own emphasis: “Pitino did not demonstrate that he monitored Andre McGee (McGee), then men’s basketball program assistant (2010-11 and 2011-12 academic years) and director of basketball operations (2012-13 academic year through April 2014), in that he failed to frequently spot check the program to uncover potential or existing compliance problems, including actively looking for and evaluating red flags, asking pointed questions and regularly soliciting honest· feedback to determine if monitoring systems were functioning properly regarding McGee’s activities and interactions with then men's basketball prospective and current student-athletes visiting and attending the institution.”

Those are the very specific pegs on which the NCAA hangs its accusations against Pitino. He failed to spot-check, he failed to actively look for and evaluate red flags, he failed to ask pointed questions and he failed to regularly solicit honest feedback.

The NCAA must determine one or more of these things not beyond a reasonable doubt, but based on information “that it determines to be credible, persuasive and of a kind of which reasonably prudent persons rely in the conduct of serious affairs.” That is similar to the “clear and convincing evidence standard,” in a civil lawsuit, according to Pitino’s attorney, Scott Tompsett of Kansas City, Mo., who has worked many cases involving coach responsibility legislation.

Let’s be clear. The NCAA assumes Pitino guilty of these things. It is his job to provide proof that he is not, in the form of documented actions he took, conversations he had, investigating he did, or other verifiable conduct.

Everybody keeps talking about the world being in a “post-truth” or “post-fact” age. So today, just the facts; or, at least, just the facts we know.

What is presented in this response is Pitino’s attempt to rebut those NCAA presumptions -- something it says Pitino failed to do when he met with NCAA investigators in the spring. Pitino's written response begins with this basic question: Where were the red flags. The assumption on the NCAA’s part is that wrongdoing of the scope of what was happening with McGee and Powell and recruits and players, over the three-and-a-half-year window of time, was bound to throw up red flags.

The argument Tompsett and Pitino make is that there were no red flags, because the people involved, the players involved and the recruits involved, were working to actively hide their activity, or hid it because they were embarrassed or fearful or for other reasons.

From Pitino’s response:

The (NCAA) enforcement staff and the University conducted an exhaustive investigation lasting over a year. The investigation did not reveal or uncover even a single red flag. Not one. In fact, not only did Pitino never see or hear of a single red flag giving warning of McGee's illicit activities, but the University housing staff and security guards - who were trained and paid to monitor the dorm and look for signs of illicit activity - also never saw a single red flag of McGee's illicit activity. If the people who live in the dorm and people who are trained and paid to watch the dorm never saw a red flag, it is unreasonable to allege that the head coach should have seen red flags.

Moreover, Pitino maintains that he did ask pointed questions of recruits and their families, and of McGee after recruiting visits. Again, from his response:

Pitino did ask questions of his staff and of student athletes and prospective student-athletes and their families who were visiting the institution. No one - not a single person - ever told Pitino that McGee ever did anything inappropriate or questionable, much less that he was hosting stripper parties in the dorm. In fact, even when confronted with the details of the activities, McGee and some of the young men who were involved in the parties lied to experienced and trained NCAA investigators. Thus, not only is the allegation factually inaccurate - Pitino did ask questions - it is also a red herring. The notion that Pitino could have ferreted out the illicit activities by asking "pointed questions" and soliciting "honest feedback” is belied by the fact that McGee and others denied and lied to the investigators even when confronted with the details of the illicit activities. Those who were involved knew that the activities were illicit and they certainly were not going to tell Pitino.

That takes Pitino’s response into the meat of what a head coach is reasonably expected to do by the NCAA. An important point: The NCAA has said that if coaches establish a proper atmosphere of compliance, they cannot be held responsible for a staff member who secretively commits violations. From the NCAA guidelines (emphasis added in Pitino’s response):

A head coach has special obligation to establish a spirit of compliance among the entire team, including assistant coaches, other staff and student-athletes. The head coach must generally observe the activities of assistant coaches and staff to determine if they are acting in compliance with NCAA rules. Too often, when assistant coaches are involved in a web of serious violations, head coaches profess ignorance, saying that they were too busy to know what was occurring and that they trusted their assistants. Such a failure by head coaches to control their teams, alone or with the assistance of a staff member with compliance responsibilities, is a lack of institutional control.

This is not to imply that every violation by an assistant coach involves a lack of institutional control. If the head coach sets a proper tone of compliance and monitors the activities of all assistant coaches in the sport, the head coach cannot be charged with the secretive activities of an assistant bent on violating NCAA rules.

Tompsett argues that Pitino did more than “generally observe” what was going on in the dorm. That he did ask questions, solicit feedback and generally look for red flags, to the point of monitoring social networking accounts. He contacted the NCAA to ask what red flags Pitino missed or did not turn up, or what questions he should have asked that he did not. The NCAA replied simply that its accusations would stand on their own.

“The allegations suggest that the staff believes that despite the absence of red flags, Pitino had an obligation to regularly conduct mini-investigations to ferret out McGee’s illicit activities,” the response says. Activities “which were designed and intended to be kept secret and hidden. No such obligation exists for head coaches.”

But the response then goes on to cite an infractions report from violations at the University of Connecticut, in which the NCAA states, “While it does not require (head coaches) to investigate possible wrongdoing, it does require them to recognize potential problems, address them, and report them to athletics administration.”

Pitino says he responded quickly when problems in Minardi Hall were brought to his attention — in the cases of underage drinking, marijuana use, girlfriends staying over too often or friends staying for extended periods of time, even players riding hover boards in the hallways. There were other issues he had to deal with from time to time. Because these issues came to him, the response says, he had reason to believe that the monitoring systems in place were doing their jobs. He had no reason to believe McGee would be doing what he was doing.

The response says Pitino frequently asked questions, spot-checked and solicited feedback from coaches on what was going on with players and recruits. He told an investigator:

I ask every single recruit, ‘Did you have a good time? What did you do? Which players did you get along with? Which players did you hang out with?’ Because we try to encourage, even though the host is responsible, he gets the money and he entertains, we try to get more involved than the host, so they interact with more, not just with a player who's not playing his position, we want him to meet everybody on the team.” Pitino said that specifically, he asks recruits, “Did you have fun last night? Did you go to a party? Did you stay in?” He said that generally, he asked the player who served as the prospect’s host, “What did you do last night in the dorm?

Moreover, Pitino said he or a staff member followed up with parents or guardians after recruiting visits, asking what the prospect said, his impressions of the visit.

Prospects are required after each recruiting visit to fill out a declaration form for the NCAA. On that form, they are asked if they received any impermissible inducements or money. Every player to visit U of L answered, “No.”

Time after time, the response uses transcripts of player interviews to hear their comments on why they wouldn’t tell Pitino what they had experienced. Some acknowledged they were uncomfortable or embarrassed. Some said they knew it was wrong and didn’t want to get themselves or anyone else in trouble. One said he didn’t want to get Andre McGee in trouble. Another said, “I just felt like I shouldn’t tell them.”

One recruit said, after Pitino had asked him what he had done the previous evening, said he told Pitino, “I just chilled with them and played video games.” He said he didn’t tell Pitino about the strippers because, “I just felt . . . it was something to keep to myself.” The prospect said he also never told his father about it.

Make no mistake. One of the worst things about all this is that it put young men in a difficult position. Many didn’t know what to do, if they should go along with things so they would look like one of the guys, or to say no (at least one in Pitino’s response did). It should never happen in a setting with prospective university students. Athletes or not. U of L has acknowledged this. And it did so again in its own response to the NCAA.

Pitino has more than once said it should have no place in his or any college basketball program.

Finally, the response notes that security guards in the basketball dorm failed to see what was happening, and that there were failures of security cameras.

At no point is a college basketball coach expected to monitor security camera functionality in living facilities. That’s not a job expectation.

So how does this end for Pitino? Did he rebut the NCAA’s presumption of fault? Tompsett, in concluding his response, notes that in any of the prior 27 cases of head coach control since 2004, “there has never ,been a case in which a failure to monitor finding was made against a head coach where the facts were even remotely similar to the facts in this case. In other words, there has never been a failure to monitor case against a head coach in which there was not some fact, sign or red flag putting the head coach on notice that a situation under his watch was ripe for NCAA violations.”

Miami, for example, had a case where athletes and prospects for 12 years accepted impermissible benefits on hundreds of times the scale of this Louisville case, yet no case of head coach control was levied.

Let’s remember, no one is making a case that Pitino knew. Nor are they making a case that he was willfully ignorant. The NCAA, after a year-long investigation and interviewing over 100 parties, and examining phone and other electronic records, could not make a case that Pitino knew. The evidence is that he did not. There are many opinions otherwise. Those opinions cannot produce evidence that he did. All of the evidence, in fact, says he did not know.

Tompsett says that the NCAA can issue a failure to monitor McGee ruling only if Pitino was willfully ignorant, or if Pitino knew or should have known of some clear red flag of McGee’s activities that required follow-up, then did not follow up. He argues that Pitino reasonably did everything he could have done — and in fact went beyond the NCAA standard expectations in monitoring. He goes so far as to say Pitino should not even have been charged with failing to monitor McGee.

How will this end? In my experience with the NCAA, you can’t predict their reasoning. In looking at this, it appears that in all of this sordid mess, the NCAA has found that Pitino is the only individual it really can sanction. It sees a mess of this nature, and feels that someone must pay a price. That person may be Pitino. The only problem is that it can’t really find any evidence on which to hang a suspension.

My guess is that the NCAA will try to establish that Pitino did not spot-check enough. Even though assistant coaches actually made phone calls to McGee at the time stripper parties were going on and still did not determine their existence, I suspect the NCAA will attempt to say that Pitino should have done more spot checks, and that he should have looked harder for red flags to evaluate. I suspect the NCAA may say that the absence of red flags doesn’t mean they weren’t there, and that Pitino did not do enough to expose them.

It’s a pretty loose peg on which to hang a sanction against a head coach with 30 years of a clean compliance record. But it also should be said that there are more transcripts and perhaps facts that we have not seen. The response shows only the defense side of the story.

Still, the NCAA is required at this point to show its full hand, something it neglected to do when Tompsett asked it to outline the red flags Pitino missed and the questions he did not ask. It had a chance to tell Pitino what, specifically, he failed to do. It kept its allegations only general. Coaches around the country, no doubt, will be watching this outcome, to see if there’s any defense for the head coach control legislation.

The burden of proof is on Pitino. When the NCAA responds in 60 days, and conducts a hearing with Pitino and Louisville this summer, we’ll find other whether he offered enough.

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