In an August 11, 2011, Sporting News online article, “Ex-Tennessee assistant: Lawyer’s counsel led to violation”, former University of Tennessee-Knoxville assistant men’s basketball coach Tony Jones claimed “he and the other basketball coaches were advised by the school’s legal counsel to not be open and candid with NCAA investigators”. According to the article, “Jones says school attorney Michael Glazier told him, coach Bruce Pearl and former assistants Jason Shay and Steve Forbes to answer only the questions posed by NCAA investigators last summer and to not elaborate on any point”. Specifically, Jones recalled “Michael Glazier advised all of us coaches to just answer the questions that were being asked and do not elaborate on anything. The question that was posed to me was, ‘Did I recognize where this grainy photo of Bruce Pearl and Aaron Craft was taken?’ There was a microwave in the background. We have a microwave in the Pratt Pavilion, where Aaron was also around Bruce, so I could not say for certain that the picture was taken at Bruce’s house. I was being truthful, and I answered the question to the best of my recollection.”
The NCAA enforcement staff subsequently alleged each coach failed “to furnish full and complete information relevant to the investigation”. Tennessee and the coaches addressed the NCAA staff’s allegations during a June 10, 2011, hearing before the NCAA Division I Committee on Infractions. The committee has not issued a ruling in the case.
Jones’ claims are without merit. Glazier’s preparation of the coaches was proper and did not exceed NCAA standards or legal ethics. In fact, if Jones and the coaches followed Glazier’s advice to the letter, then an unethical conduct allegation would not have been issued by the NCAA enforcement staff. Namely, Glazier cautioned the coaches to “answer the questions that were being asked”. If the answer Jones provided to the media now was more informative than the answer he provided to the NCAA during his interview, then the question was not properly answered (and Glazier’s advice was not followed). For example, an accurate and responsive answer to the NCAA question could have involved the following: “I cannot identify the location with certaintly, but because of the microwave in the background it could be one of two places: Pratt Pavilion or Coach Pearl’s house. However, I cannot state for sure.”
We advise NCAA member institutions to avoid in-depth witness preparation sessions because to do otherwise would risk violating NCAA enforcement procedures. [Note: Interviews conducted during the NCAA enforcement process are not depositions.] Instead, NCAA legislation and due process principles permit member institutions to advise the witness:
- The purpose of the interview-which can be fulfilled by quoting NCAA Bylaw 126.96.36.199 (“The purpose of this interview is to determine whether you have knowledge of, or have been involved directly or indirectly in, any violation of NCAA, conference or university legislation, rules or regulations”.).
- The institution has retained outside legal counsel or consultant (if true) to represent it in connection with its internal investigation, but the law firm or consultant does not represent the witness personally.
- The interview is voluntary and the witness may request it to be terminated at any time. [Note: However, the witness should be advised of the consequences of not complying with NCAA Bylaw 10.1-(a).]
- NCAA legislation provides the witness with the right to have legal counsel or other authorized representative present during the interview. [Note: The witness also should be informed whether the institution will cover the fees and related expenses for the witness’ representative in connection with the investigation.]
- NCAA legislation requires the witness to maintain the confidentiality of the information provided during the interview, including, but not limited to, prohibiting the discussion of the investigation with involved individuals or other persons (excluding consultations with legal counsel or authorized representatives).
- NCAA Bylaw 10.1 includes, among other actions, as “unethical conduct” by a prospective or enrolled student-athlete or a current or former institutional staff member: i) Refusal to furnish information relevant to an investigation of a possible violation of an NCAA regulation when requested to do so by the NCAA or the individual’s institution; ii) and Knowingly furnishing or knowingly influencing others to furnish the NCAA or the individual’s institution false or misleading information concerning an individual’s involvement in or knowledge of matters relevant to a possible violation of an NCAA regulation.
- Any statement the witness makes can be used in any NCAA, conference and institutional proceeding.
- If it is found the witness was involved directly or indirectly in any violation of NCAA, conference or institutional regulations, any statement the witness makes during an interview can affect adversely the person’s eligibility at, or employment or affiliation with, the institution.